31. Jones-Pauly, Chris: Old Problems and new Ideologies in Land Reform in Tanzania

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ABSTRACT

This paper discusses the policy issues that the land tenure reform process in Tanzania, both the mainland and Zanzibar, raises. The differences and similarities in approach on the mainland and Zanzibar are presented. The mainland with the assistance of the World Bank is still undergoing a long process of rewriting its land law with the following goals: the boundaries of resonsibility for forested areas, mining, large developmental farms, and village land use are to be made clearer. Zanzibar with Finnish technical assistance has already enacted new land and registration laws along with good publicity programmes to encourage registration in order to achieve the following goals: to prevent land fragmentation under prevailing Islamic injunction and to maintain an even distribution of land started by the Revolutionary Government since 1964. The differences and similarities in approach are traced back to historical changes that the colonial era ushered in, especially the introduction of the notion of property, land speculation and land grabbing at the cost of social responsibility and the notion of state-planned exploitative economic development.

The present land tenure policy debate should be no longer in terms of property and individual ownership as framed by the World Bank in 1991 for Tanzania so much as the right to development and the right to land when one examines the actual policies propagated by the government. The policies that underlie the legal reform process presuppose the government as the basic landlord parcelling out land to applicants. The explicit rationale given is that the government has the best overview for developing the land resources and not the market. The paper argues that there is another implicit rationale that also underlies the government’s legal approach. The latter is that every citizen has the right to land and that only governmental institutions can assure this right. The paper considers the extent to which the government 1) should explore the tensions between the right to development and the right to land, and 2) evaluate both rights in terms of the Islamic injunctions that land is to be granted by those who have more than they can use to those who are in need (including women), the customary ideal of use as the basis of ownership, as evaluated by the larger family unit, and the extent to which women’s claims to land are jeopardised. The paper concludes that the land tenure policy continues to ignore, like the colonials, the realities of local decision-making concerning land allocation. Thereby it fails to recognise that the starting point of land allocation is not the ‘public’ political decision-makers (whether at village or national/regional level), but rather the local ‘private’ decision-makers, i.e. the larger family unit, which is the major source of decision-making for allocation of land and labour/capital resources.

Introduction

As Tony Allott long ago noted, political organisation has the closest possible connection with patterns of land tenure. [FN] With the introduction of the British colonial era, two kinds of political organisations came to co-exist in what is today Tanzania. On the one hand there was the local political organisation, consisting of family, clan and village heads. [FN] On the other hand was the centrally imposed imperial political organisation of the British.

Historical political roots of British colonial land tenure

I would venture to say that the political organisation of the British colonial era had two aspects which influenced the pattern of land tenure that they introduced via law. These two aspects were: 1) the sovereign as the highest landlord of the land, and 2) the sovereign with the basic right to intervene in development of the land according to the sovereign’s notions of exploitation of land as a source of revenue for the sovereign and the general population. Anyone in the political realm who refused to accept the right of intervention could be forced to accept being compensated either with another piece of land or monetary equivalent as long as the sovereign gave reasonable grounds before a court of law for intervention in the name of the common good.

The basic political organisation affecting land tenure that I have outlined above derived from English medieval political patterns. [FN] The core of the medieval system was the absolute right of landlord to control who could hold tenure in his lands and continued tenure of the heirs lay also in his discretion. His discretion was to be guided by the political reliability and loyalty of the heirs. This meant that the tenure was not permanently secure from one generation to another. When a tenure holder died, the prospective heirs were without protection. The landlord could revise the tenure in terms of its conditions or even terminate it according to his political needs. Even at the height of the Crusades, when mortgaging of tenure interests in land was used to raise credit to pay for the foreign expeditions, the landlords exercised their rights to determine whether they would accept the creditor as the new tenure holder in case of default. [FN] The right to property, i.e. the right to prevent intervention on the part of the landlord, was not recognised. The right to property came into existence as a result of political struggles between the various landlords and the paramount landlord, the king. If it were to the king’s advantage to hear a dispute between a land user or a holder of tenure on the land of a politically rivalling landlord, the king’s courts intervened to prevent intervention. Such intervention meant that the king eternalised the tenure, turning it into a property right, a right that was detached from the landlord and attached to the person with a direct interest in passing on the tenure to her [FN]/his heirs. The tie was no longer between the tenure holder and her/his political dominant, but rather directly between the holder and the land or tenement. Eventually the land law evolved to the other extreme, so that the property holder became his own lord and could deprive her/his own prospective heirs of the land as the medieval lord once could. The form of intervention from the sovereign landlord, the monarch, also had to change. It was no longer a direct intervention in who could succeed to the land as heir or creditor. Direct intervention came to be limited to direct taking of the land and becoming its property owner by way of confiscation with compensation. Indirect intervention became the most common form of control. This consisted of taxing the produce from the property.

Historical political roots of Tanzanian and Zanzibari land tenure

The basic political units were clan, family, chiefs and village heads. Their control over land and its distribution cannot be said to have been absolute due to the vastness of lands available in proportion to the population. Land availability enabled individuals and groups to immigrate away to make new clearings and settlements with new or modified rules and customs. This possibility was open not only to dissidents but also to those who wanted to prove their ability to lead by establishing their own village and thereby improving their chances for becoming head of a larger clan. Even when the primary tenure holder was the person who first cleared the land, [FN] that person belonged to a web of relationships which influenced the passing on of the tenure to the prospective heirs. The tenure was not permanently secured for the next generation. The village head, clan, and family could exercise discretion in the allocation to the next generations according to the economic needs of each of the prospective heirs, but also taking into account internal family quarrels and public opinion. [FN] Even the right to claim tenure on the basis of clearing the land was not absolute. Some village heads in anticipation of expanding population had the discretion to determine how much of the bush land surrounding the village was reserved for village members willing one day to clear it.[FN] Even in some areas, the individual clearing land could reserve a certain amount of uncleared as under his control, the limit being that it could be no more than the amount that any one man (and presumably his wives who had to work the land) were capable of using. [FN]

In Zanzibar there was a central political authority, the Sultan, but he was not regarded as the sovereign landlord. He held land as an individual. His land tenure like that of his Arab supporters was based on seizure by force and/or clearing bush land. Once the Arab control was established, the individual tenure holder had an absolute property control over disposal of tenure only during her/his lifetime. The holder could in her/his lifetime give the land away or sell it without consulting any of the prospective heirs. The holder ceased being the proprietor upon death. The tenure holder could not determine the fate of her/his landed properties after death. The deceased could regulate bequeathing up to 1/3 of the land to non-family members. The Koranic law stepped in to decide who would be the new property owners of the remaining 2/3. The law designated a group of relatives who were to inherit the land, so that no one relative could be the sole property owner. The relatives were free to decide whether to divide up their shares and each would dispose of her/his share absolutely; or they could decide to hold the land jointly, in which case control was a matter of family politics. The result over time was that most lands were not disposed of freely in the lifetime of the property owner, but rather kept under the control of co-heirs. This resulted in practical constraints on the theoretically absolute property control that each co-heir had. The individual percentile of the property was so small that it did not merit selling it and removing it from family control. There were certain advantages, especially for minors, in this system. For example, a widow who held in trust property shares for the children, could not improperly dispose of the children’s shares in the land without the rest of the family heirs easily detecting this. [FN] The intervention of the political ruler was limited to taxation on the produce. There was one exception, however, to the rule that the land holder could not control the land after death. The institution of waqf comprised this exception. It was a dedication that the property owner made in her/his lifetime to God. The land was to remain the perpetual property of God and the distribution of the produce of the land was to go to the needy or to heirs in perpetuity and when they died out to the needy. In Zanzibar this power of waqf was widely used by Arab landowners for the maintenance of female family members and of manumitted slaves. Waqf had the added advantage of being even beyond the reach of the political sovereign. The law permitted no taxation of the proceeds of waqf lands. Alongside the land tenures governed by Koranic law were the clan or family holdings. These were lands controlled by elders for the needs of the family members. All family members, including divorced daughters returning to their natal villages, had interest in the land being preserved jointly and not falling under the control of any one individual. For one of the considerations for allocation besides the cultivation needs of younger family members was the willingness of a family member in appreciation of allocation from the elders to cultivate the land of an elder too feeble to work the land. [FN]

I venture to conclude that land tenure in Tanganyika and Zanzibar was not historically closely linked to the exercise of absolute political power by any one ruler. It was tied instead to a web of checks and balances.The foci of power were scattered among village authorities, family and clan authorities. The fundamental guiding principle of control of allocation was meeting the subsistence needs of family members, but could be deviated from in cases of personal quarrels and the ability of any one member to break away and clear virgin land.

Impact of the introduction of colonial land policy - grants of occupation

The British arrived in East Africa with the aim of allowing European settlers to become property owners on what they believed to be ‘free’ bush land. The administration had no idea of the local notion of the right of villages and individuals to reserve certain bush land for future needs. As the British began to issue what they regarded as titles of absolute property in land in East Africa, they were in for a rude shock. When faced with protests from the local pastoralists against the expansion of settlers at the turn of the century, the colonial occupiers realised that they could not sell land to the settlers with a guarantee of good title. At most they could grant the settlers ‘permits to occupy the land’, for if a local pastoralist had convincing evidence of prior seasonal or pastoral occupancy, this right was recognised. The recognition of this right was relativized. The right was subordinated to the right of the sovereign to intervene and reallocate land to their own citizens subject only to the restriction that intervention had a price tag, i.e. compensation had to be paid. The result was not that the settler had to give up the land. The settler had only to pay the compensation due to the previous local occupier for usurping his rights. [FN] Allotting plots to settlers became the basis of the colonists land policy.

Centralised control over land distribution

The power to allocate had to be legally legitimated. For that purpose a particular construct was devised, namely, that the only ‘person’ with a guaranteed title to land was the imperial sovereign, which conferred such right on itself as conqueror or by way of ‘treaty’. It became owner of all lands, whether occupied or not. Eventually the power to allocation was extended to cover the power to reserve or eject. As population pressures grew by 1923 the British exercised this power to reserve certain areas to the original local users. The British governor went so far as to prohibit alienation of land to European settlers in the then Northern, Tanga and Central Provinces. [FN] Sales within reserved areas were not prohibited, until the practice began to interfere in the previous system of allocation through a web of clan, village heads and families. By 1927 the colonial power had to consider extending its allocational powers to cover interference in or supervision over the allocation practices in the Kilimanjaro region. Chiefs in the Kilimanjaro region expressed their concern that the sale of land would result eventually in the accumulation of land in the hands of a few individuals, which would restrict the areas available for allocation to succeeding generations. The British took the protests seriously and thought out a system of delegating their own self-appropriated power of allocation to the chiefs as Local Authority. This was a mistake in so far as the British misconceived the historical political structure. Not regarding the family or clan levels as important foci of political power, the colonists chose to pick out only one part of the local political relational web. They chose to concentrate on the village headman or chief as the focus of political power to which they could delegate part of the power to allocate. The chief was even compared theoretically to the English medieval landlord as the local focus of power which had to be bought under control by the central government. [FN] Such a selective approach did not take into account the spread of power characteristic of the East African political culture. [FN]

Factors influencing allocation

There were also considerations other than population pressures that guided the British in whether and when they should allocate land to European settlers. For example, as the less populated southern Highlands were to be opened up to settlers, the London Colonial Office instructed the governor to wait until the railway had been built. Otherwise, opportunistic settlers would have raised the price of their allocated lands in order to demand higher compensation prices from the government for having confiscated the land for public purposes. [FN] The colonial government was not rich and had to avoid squandering its limited resources on paying compensation for confiscations of land. The Colonial Office wanted to avoid also the costs of a dispute of the likes it had had at the turn of the century with a British company that had bought land in the Mombasa dominions of the Sultan of Zanzibar over the value of the land that the British government had used to calculate compensation due for confiscating the land for the East African railway. [FN]

Allocation for development

Settlers raised another issue that plagued the British land tenure policy. Settlers (including missionary societies) justified their taking over of land, even when subject to compensation to the prior local occupiers, with the argument that they could develop the land and make the colony prosperous more so than the African inhabitants. This was an old and tried argument that underlay the legal justification a century before in America for removing native Americans from the land. The civilising development mission had precedence over rights. The British governor was sceptical towards the success of development through settlers. Exceptions were made for settlement in the Provinces closed in principle to settlers if the applicant had sufficient capital for large scale farming connected with water supply. [FN] For without sufficient capital the development farming would turn into a fiasco as soon as the market for a particular agricultural product weakened. [FN] The governor’s point was proved true in the desperate situation that Zanzibari Arab settlers found themselves, when the Depression resulted in creditors (banks and money-lenders) taking over mortgaged clove plantations but without any interest or technical competence to continue the agricultural activities. To remedy the situation the British set up a government board to decide whether the mortgage should be foreclosed. When this machinery proved too cumbersome and ineffective, the government incurred heavy expenses by paying off the mortgages. It had the power to reassess the reasonableness of the interest charged. The debtor had then to repay the government in instalments of a level that would not threaten the debtor’s livelihood. Again the government relied on its own centralised structures. It did not use the players in the web of family, clan and village headmen/chiefs to let them decide how to handle the matter by spreading the payment of debt among several members of the family or clan.

Despite economic setbacks, development became the basis of the land tenure policy. As landlord of the entire country, the colonial government authorised itself to issue permits or grants of occupation to anyone, local inhabitant or settler with an implied covenant. The covenant comprised ability to develop the land by investing in unexhausted improvements -- the minimum value of which varied with the size of the acreage granted -- within a set time (3 to 5 years). The grant of occupation was limited to 99 years. The reason was that the government grant entailed no more than a lease. It was not a freehold. For a grant of freehold would have implied prior extinction of customary tenures. Since such extinguishment was nearly impossible for lack of surveys and registration of customary rights, the government would have opened itself to being sued by the freeholder for unclear title. Or if subsequent to a freehold grant the government needed to take back the land to meet the needs of expanding local population, then it would have been able to do so only through confiscation, which was costly. With an occupancy/lease customary rights remained intact, and at the end of the 99 years, the governor could in principle return the land to the community, if need be, subject to compensation to the developer for only the unexhausted improvements. [FN]

Allocation for resettlement of Africans

Not only did the government take on responsibility for allocation and reservation of lands according to population group (settlers or local inhabitants). It also resettled population groups. On the mainland populations were moved and resettled as part of measures to control sleeping sickness, for creating pastoral reserves for the Masai, for forming forest reserves, [FN] or for reducing pressure in densely populated areas. Already in 1928 and well into the 1950s peasants were induced to move into sparsely inhabited areas onto settlement schemes designed by the colonial department of agriculture for upgrading farming standards. Tenant settlers were given a certain acreage for mixed vegetable and animal farming, training in mechanised agriculture, or training in cash crops, and even sometimes free housing until the first harvest. [FN]

Mixing the allocation system with customary inheritance rights

The grants of occupation/lease as noted were in principle intended to encourage development of the land in the direction of modern agriculture and land management. These grants gave control to the government over the prospective heirs in so far as the heirs remained subject to the developmental conditions of the occupancy/lease and their tenure terminated after 99 years. The occupant/lessee was also given a certain control. The occupant could determine who the prospective heirs would be by way of will. In this way the occupant could remove the land from the web of family, clan, village relationships which otherwise would have determined the heirs on the basis of needs and family cohesion. This fitted into the scheme of government allocation as an attempt to free the land tenure from this web of relationships. Nonetheless, the British permitted the heirs to challenge the will as contrary to customary rights (Deceased Natives Estates Ordinance, Cap. 16). [FN] Such a provision allowed within the 99 year period for control over land, even though allocated from the central political power, by the web of family political relationships that had dominated in Tanganyika before the intervention of colonial political power.

Current land tenure policy. With independence, the Tanzanian government did not alter the basic political structure that the British had imposed. The central government executive simply replaced the British governor as landlord of the entire land. The difference lay in the fact that the Tanzanian government pursued the basic British land tenure aims more aggressively: 1) Resettlement became even more radical under Ujamaa and villagisation. 2) Disputes over whether customary land rights had been violated by the allocation of occupancy/lease rights to settlers from outside were encouraged to be brought out in the open before special adjudicatory commissions (Land (Settlement of Disputes) Act, Cap. 524). [FN] 3) Customary land rights were no longer regarded as eternal; they were deemed dissolved under the English rule of prescription if the person claiming her/his customary rights to evict the government-allocated occupant had, without sufficient cause slept on them for more than 12 years (Customary Law (Limitation of Proceedings) Rules, 1963, G.N. 311/1964 [FN]). What has not been made clear is whether an occupation/lease right can be converted into a customary right. Such would arise when the occupant has abandoned the land and the government as lessor has neglected for more than 12 years to control the development on the land, so that a stranger who clears the land could argue that he or she has created a customary tenure in the land by virtue of clearing it.

In Zanzibar the Sultan was overthrown shortly after independence. The successive revolutionary government continued the Islamic political system in so far as it did not declare itself as paramount landlord of all land in the domain. It appropriated to itself only the right to confiscate as much land as needed in the public interest of correcting the imbalance between large Arab landowners and the African peasant majority (Decree 8/1964). It had to publicly declare and register the confiscation order. A year later the government abandoned this approach and declared itself the paramount landlord of the country, vesting itself with all land (Decree 13/1965). It retained only one aspect of the Islamic political system: The government tenure was subject to the rights any person had in the developments (constructions, mining or agricultural operations) on the land.

Zanzibari land tenure reform laws. Zanzibar has now enacted a series of new laws since 1989. [FN] Basically they consolidate the fundamental approach that was introduced by the Revolutionary Government in 1965, when it vested all land in itself. They further refine the provisions by which the government is to allocate grants of occupation. Such grants depend on each citizen exercising his/her right to apply for an allocation. The occupation right is in perpetuity and transferable, but subject to termination by the sovereign on grounds of bad husbandry (Land Tenure Act 12/1992, §8(2)(f)). The government may also interfere in transfers. The government can nullify a transfer if it offends the social well being of the parties involved or that of the prospective heirs or the government’s developmental aims (Land Transfer Act 8/1994, §7 and 15). Alongside rights of occupation obtained from government grants are customary rights determined by the web of family, clan and village relationships and inheritance rights under Islamic law. These are no longer deemed customary rights, rather they are rights of occupation that can be recognised only if registered like the government grants of occupation rights. The registration system, once in place, is the vehicle over which the government controls all transfers, even those derived originally from customary land rights or Islamic inheritance rules. For registration, if working properly, would allow the registrar to notify the Land Transfer Board of registration of any transfers by way of inheritance. The registration would be void if the Land Transfer Board has not approved it (Land Transfer Act 8/1994, §2, 15). Theoretically this could mean that even a court adjudication allowing the division of land according to the Koranic injunctions could be declared void if the heir/transferee is shown to intend to use the land improperly. Even mortgage foreclosures are regulated with development aims, namely, the mortgagor is kept from becoming a landless indigent by limiting the foreclosure on proceeds of the land. Upon the debt being paid off, the original grant holder resumes full control over the right of occupancy (Land Tenure Act 12/1992, §13). Even if the mortgagor wishes to put up the land herself/himself for sale to pay off the debt, the Land Transfer Board (subject to review by the Land Tribunal) can prevent this for reasons that it is not in the welfare of the mortgagor and prospective heirs.The system that the government is trying to install thus prevents the land tenure system from falling back under the control of the customary web of political and family relationships by virtue of inheritance or borrowing arrangements. This is a most radical departure from the colonial system that recognised customary and Islamic systems, though as subordinate to a centralised system.

Whether the reforms will function -- even assuming that the machinery is put into place -- will depend on how the Land Transfer Board (and eventually the Land Tribunal) sees its role vís à vís the clan, family and village heads in allocation of land, including inheritance. The government organs have several choices: 1) to bind themselves by criteria that are fully different from or that coincide with those guiding the decisions of the web of family, clan, village relationships; 2) to rubber stamp the decisions of the relational web; or 3) to call for evidence of whether decision-making within the web was procedurally fair in so far as all interested parties were heard, including women, and the decisions grounded fairly. I would recommend the last approach for two reasons. First of all, the web is still functionally. This is evidenced in some areas of Zanzibar by the fact that at least 2/3 of the agricultural population hold land and clove trees jointly and not individually. [FN] This is probably representative of the general peasantry. Secondly, the basic social aims of the government land tenure policy and that of the web of family, clan and village relationships are principally the same: namely, to assure that each has a right to land as a means of subsistence and as a means of preventing landless indigents (analogous with the right to fair wages for an urban society) and that the right to development is a function of family, clan and village pooling resources as well as distributing the burden of debts incurred due to borrowing capital. Such an approach would also affect how registration of rights is conceived. Normally it has been associated mentally with individualisation, [FN] so that even if several family or clan members actually have interests and rights in the same land, the registrar book is designed usually to accommodate only the name of one individual, not 200, as can be the case in land handed down for generations under Koranic rules of inheritance. Tanner’s observation of many years ago of registration on the coast still serves as a relevant warning: ‘The individual title in this area is no more than a cover for the continuation of previous land rights.’ [FN]

Women have lost some ground in the new Zanzibar land tenure laws to the extent that the law does not explicitly protect their interest automatically in the land of their husbands. Yet nor is the interest of the husband in the land of the wife automatically protected. The original Distribution Decree (5/1966, now repealed) had provided for the revolutionary government to distribute 3 acre plots out of lands confiscated. The grant of occupancy explicitly was for life tenure for both the grantee and spouse with inheritance rights for descendants. The present Land Tenure Act (12/1992) makes no such provision. Nonetheless, it opens up the possibility of a woman applying for her own grant of occupancy for land separate from that granted to her husband to meet her own particular needs. Whether women shall be able to take advantage of the new law shall depend both on their initiative and their access to capital resources needed to develop the land. Otherwise women dependent on cultivating the land of their spouses or, if divorced, on returning to the land of their natal family shall have to take the initiative to register their interests as a joint occupancy claim on the land as soon as they have contributed to the spouse’s land or as soon as they foresee the need to return to their natal families. The notion of claim should not be defined only narrowly in terms of whether the statute law gives a woman a right, e.g. a share in matrimonial property owing to her contribution, but additionally in the broader terms of a person whose needs merit discussion and consideration by the web of family, clan and village relationships. [FN] These needs can be met by inheritance distribution or ‘borrowing’ (including toleration of cultivating without protest) from relatives and non-relatives under the Islamic injunction that those with more land than they need or use ‘lend’ to those in need. Such realities have not been worked into the new land laws.

Draft land tenure laws on the mainland. Government reform efforts on the mainland have been supported financially by the forestry management department of the World Bank. Thus the thrust of the reform is to protect the forested areas. About 50% of Tanzanian’s land is in forest and woodlands. [FN] About a quarter of this (29 million hectares) is public land that has not been allocated to designated persons or enterprises for commercial use. [FN]

Basic land tenure scheme [FN]. In order to secure the boundaries of the forests, which would be at the exclusive disposal of the central government as public land, all other boundaries of other types of land have to be set. All of the mainland is to be divided into three types of territorial boundaries: village land, general land, reserved land (§4(4)). Village land stands under the jurisdiction of village government. General land is public land. Reserved land includes forests, conservation parks, the coast line, and any land declared by the central government as hazard land, i.e. in danger of environmental degradation (§8). General and reserved lands are under governmental jurisdiction.

The type of territory determines the type of tenure right that anyone may hold. A granted right of occupancy may be only within the general or reserved territories (up to 99 years, subject to condition of development, in writing). A grant of a customary right of occupancy may be only within village territory (in perpetuity, subject to good husbandry, also in writing). [FN] Both types of rights of occupation would be subject to a limit of 2500 hectares, unless the President, as paramount landlord (§4), approves more.

The central government has the option to negotiate with the village government to remove village land into general or reserved territory. If the villagers find it to their advantage to do so, they can relinquish land; if not, they may refuse, against which decision the central government would have no recourse. What remains unclear is whether the central government could force the hand of the village by using its power to declare unilaterally any land hazard land. If the central government wishes to extend the amount of acreage under village jurisdiction, it may do so without approval or refusal from the village government in question. Whether there would be massive protest against such an action would depend on whether people in a given area prefer 99 year occupancies or in perpetuity (but with the possibility for the village authority to set shorter terms). Confiscation rights of the central government subject to compensation remain intact.

The types of persons who qualify for village grants of a customary right of occupancy would be not only individuals but also family units (§69(1)). The type of person assumed to apply for a central government grant of right of occupancy is an individual.

All dispositions or transfers of rights of occupancy are subject to approval by the respective central government or village grantor. The respective government is to take into account whether such disposition would result in indigent landless families (§46(7), §77(4)(c)). Interference by the village or central government in family unit decisions about allocation of land to heirs of a deceased occupant on the basis of need or internal family politics is presumably not allowed (§2, Interpretation of ‘disposition’, ‘transfer’, which does not include transfers by operation of law, such as, inheritance). The mortgagee of a granted right of occupancy has to secure a court order to enter into possession (§189(3). Small mortgages do not require consent from village authorities (§78(4)(b)(i)).

The gains that women have made in Tanzanian courts regarding their interests in land are protected in the draft. No grant of a customary right of occupancy may be based on a rule of customary law which discriminates against women acquiring land (§67(1)(a)). Any grant to a married person is presumed (rebuttable) to be a grant of joint occupancy with the other spouse(s). A spouse is deemed to have acquired a joint occupancy where the spouse contributes by labour to productivity/improvements of the land (§225). This provision is a compromise for women who protested against their husbands being automatically joint holders in grants which the woman applied for in her own name. What is missing is a clear regulation of equity interests of family members who have helped finance investments in the land, even though many a woman has been known to contribute financially, for example, to unexhausted improvements on the land of her parents. [FN]

In short, the government has conceived a land tenure reform which retains the colonial notion of a paramount landlord. The regulation of allocation rights of the village government is a more sophisticated continuation of the British colonial focus on only one of the foci of powers, no longer called village chiefs, but now village government, presumably more democratic than chiefs. Again the government leaves out of the official arena the other foci of power: the family, clan as allocators. The latter are treated simply as units that apply to the government, whether village or central, and not as central to decision-making. The drafters of the land law could well have taken examples from the practice of the courts which tend to rely on the family council decisions about distribution of estates left for inheritance as the basic decision-makers and limit their role to scrutinising the equity of the decision and to encouraging family members to hold to standards of fair hearing. [FN] Given the social reality that most land is acquired by inheritance, [FN] one could design a tenure system in which the local family unit informs the village authority of its allocation decisions and the role of the village would be to examine the equity of such.

CONCLUSION

The British colonials introduced the right of property as it had evolved from the English medieval society into East Africa. This highly prized individualised right to property is rooted in an historical process through which Tanzania has not evolved. Due to this fact, there are other rights which should be emphasised in relation to land tenure which grow out of the political history of Tanzania -- the right to land as sustenance and the right to development.

The land tenure policies continue to ignore, like the British colonials, the realities of local foci of decision-making concerning land allocation. Thereby they fail to recognise that the starting point of land allocation is not the ‘public’ political decision-makers (whether at village or national/regional level), but rather the local ‘private’ decision-makers, i.e. the larger family unit, which is the major source of decision-making for allocation of land and labour/capital resources. The next step in the land reform process would not be immediate erection of land reform machinery, but first returning again to the people with a clear conception of the tenure scheme and asking for their opinion on it.