of the implementation of the Village Land Act

FASTIGHETSVETENSKAP 

EX-06-160 

EXAMENSARBETE 

The Challenging Tanzanian 

Land Law Reform 

A study of the implementation of the Village Land Act 

Per Larsson 

Examinator and Supervisor: Leif Eidenstedt 

Conceptual Coordinator: Fidelis K Mutakyamilwa 

Logistic Coordinator: Niklas Herrmann 

STOCKHOLM 2006

This study has been carried out within the framework of the Minor Field Studies 

Scholarship Programme, MFS, which is funded by the Swedish International 

Development Cooperation Agency, Sida. 

The MFS Scholarship Programme offers Swedish university students an opportunity to 

carry out two months’ field work, usually the student’s final degree project, in a Third 

World country. The results of the work are presented in an MFS report which is also the 

student’s Master of Science Thesis. Minor Field Studies are primarily conducted within 

subject areas of importance from a development perspective and in a country where 

Swedish international cooperation is ongoing. 

The main purpose of the MFS Programme is to enhance Swedish university students’ 

knowledge and understanding of these countries and their problems and opportunities. 

MFS should provide the student with initial experience of conditions in such a country. The 

overall goals are to widen the Swedish human resources cadre for engagement in 

international development cooperation as well as to promote scientific exchange between 

unversities, research institutes and similar authorities as well as NGOs in developing 

countries and in Sweden. 

The International Office at KTH, the Royal Institute of Technology, Stockholm, 

administers the MFS Programme for the faculties of engineering and natural sciences in 

Sweden. 

Sigrun Santesson 

Programme Officer 

MFS Programme 

International Office, MFS 

KTH, SE-100 44 Stockholm. Phone: +46 8 790 6000. Fax: +46 8 790 8192. E-mail: sigrun@kth.se 

www.kth.se/student/utlandsstudier/examensarbete/mfs 

2

Abstract 

In this thesis, the Tanzanian Village Land Act and its present implementation process is 

studied. Through interviews with people from the academic sphere in Dar es Salaam, as 

well as field-interviews with leaders in countryside villages, opinions are gathered about 

the implementation process so far, and the prevalent expectations on its future 

development. 

The new Tanzanian land legislation seeks to empower the customary right of occupancy 

titles, in order to stimulate the development of the very many small-holding farms 

throughout the country. The customary land rights are given legal recognition, meaning 

increased land security for the land-holders. Other provisions of the new land acts are: 

registering activities aiming at enabling mortgaging of village land, increased equality 

between men and women, and a decentralised, and hopefully more efficient, disputeresolution 

process. 

Having passed the Tanzanian parliament in 1999, two land acts came into force in 2001: 

Land Act 1999 and Village Land Act 1999. They are now processing an initial phase of 

implementation. Critics maintain that the legislation preserves a centralised state-control, 

which will hamper the rural development. Proponents argue that regulations are needed 

in order to protect the generally poor rural population against being ruthlessly exploited 

by financially strong potential buyers. 

The implementation is far-reaching and will likely demand considerable resources in the 

course of the coming few years. Nevertheless, as the former legislation collapsed in the 

mid-90s, there is no other choice for Tanzania than to continue the process. Although 

there are quite a few obstacles in sight, the land acts do have the potentials to succeed to 

substantially improve the land situation in the rural areas of Tanzania. 

Keywords: Customary law, informal land rights, customary land tenure, leasehold 

tenure, property rights, land politics, land policy, land legislation, Tanzanian land law, 

implementation process, Right of Occupancy, Village Land Act 1999, Land Act 1999 

3

Preface 

The study originated in a dialogue with Mr Öckerman, former Chief Technical Adviser at 

the Orgut headquarter in Dar es Salaam. Before my arrival to Tanzania, Mr Öckerman’s 

successor, Mr Herrmann, agreed to act as logistic coordinator for the field study. Mr 

Herrmann put me in contact with Mr Mutakyamilwa, chairman of the Village Land Act 

Implementation Task Force at the Ministry of Lands, who generously supported me as 

conceptual coordinator, involving me in the work of the task force. All in all, the field 

study in Tanzania lasted three months, from November 4 th 2004 through February 2 nd 

2005. 

Acknowledgements 

I want to direct my deepest thankfulness to Mr Mutakyamilwa and the entire task force, 

who patiently answered my questions and in all ways helped me to gain knowledge about 

the land acts. Among them, special thanks to Mr Kami, who generously invited me to 

visit his farm, of which I was deeply impressed. Many thanks also to professor Ndjovu 

for his encouraging cheerfulness, and for arranging an interview tour at the UCLAS. 

Thank you, Mr Simba, Professor Kombe and Professor Kironde for taking time to give 

interviews. 

I also want to direct very special thanks to Mr Sichone in Vwawa, who not only patiently 

awaited my twelve hours delayed train arrival at the Mbeya train station, but in all ways 

showed great hospitality and true generosity, of which I was deeply moved. 

Thank you, Mr Herrmann for your administrational help, without which the journey 

would never have been accomplished. While addressing Scandinavians in Tanzania, I 

also send thankful greetings to Mrs Ulla-Maj Järn in Babati, who arranged a few extra 

interviews and village visits, as well as the relaxing fellowship during my final days in 

Tanzania. 

Finally, my gratefulness goes to my precious Lord, Jesus Christ for, of which I am 

convinced, having provided protection in dangerous situations, encouragement in times 

of anguish and joyful, precious fellowship in early morning prayer-walks. 

Executive summary 

The Tanzanian right of occupancy is the institute of land-holding in a society where the 

whole land-tenure system is based on leasehold tenure. Introduced by the British colonial 

authority, the right of occupancy system was maintained basically unaltered into the land 

policy of independent Tanzania. The basic idea of the right of occupancy system was to 

build upon a traditional African way of land-holding. For villagers in the countryside, 

only deemed rights of occupancy were available, whereas statutory rights of occupancy 

were meant for urban dwellers and settlers. It was only the statutory title that was given 

formal security of tenure. This weakness of the customary titles became severely evident 

during the land reform and villagisation process of the 1970s. During this process, land 

was used as an important tool to increase equity, productivity and efficiency in the nation. 

However, having the contrary effect, the land reform instead led to widespread legal 

confusion and countless land conflicts. Trying to bring order in the subsequent economic 

crisis, the World Bank tried to promote individualisation of all land in Tanzania. The 

western-style ownership tenure, enabling a free land market and a mortgaging system, 

was held up as a smooth and rapid solution. Now, experience has shown that such 

4

systems may well function in western societies, where it has been built up over a long 

time. Inevitably, though, it will bring implications when brought to developing countries. 

It will disturb the crucial but vulnerable social network that is built up around landholding. 

The new land legislation, the Land Act and the Village Land Act of 1999, conserves the 

leasehold tenure through the right of occupancy system, but aims to provide facilities that 

enable an increased land security for villagers and pastoralists, as well as possibilities for 

investments in small-holding farms. The implementation of the land acts are making 

progress, albeit slowly, and the main concern seems to be the question of financing. 

Other critical issues are, whether the banks are going to respond to the mortgaging 

possibilities and thereby fulfil the strategic visions of investments in the agriculture; 

whether the conditions concerning acquisition of village land is going to prevent a free 

land market, that will not only enable poor people to sell off their land, but rather force 

them to sell; whether the upcoming land markets and the dependence on the local 

customary laws are going to subdivide the country into two, or more, geographical 

fractions, separating popular areas with high and stable land values from those of lower 

land value. 

The final discussion draws conclusions from a comparison between a freehold-tenure 

system, on the one hand, and the modernised right of occupancy system, on the other. 

Here, the strong power of state control turns out to be a distinctive feature for the latter. 

Finally, different challenges for the implementation process are being discussed, and two 

future scenarios are being sketched. 

5

Summary in Swedish / Svensk sammanfattning 

I Tanzania hanteras nyttjandet av mark inte genom äganderätt, utan genom ett system 

med nyttjanderätter; Right of Occupancy. Dessa rights of occupancy innebär ett 

nyttjanderättsförhållande med staten som ger äganderättsliknande rättigheter till mark 

med upp till 99 års löptid. Historiskt sett har rights of occupacy sitt ursprung i den senare 

koloniala epoken under brittisk överhöghet, men bibehölls i det närmaste oförändrad in i 

den självständiga nationens marklagstiftning. En grundtanke med rights of occupancy var 

bland annat att erkänna och kunna hantera stammarnas och byarnas egna traditioner kring 

markfrågor. Landsbygdsbefolkningen gavs dock inget formellt rättsligt skydd för sina 

markrättigheter, vilket gjorde dem ytterst sårbara, inte bara gentemot europeiska 

nybyggare under den koloniala tiden, utan i än större omfattning under den omvälvande 

landreform som senare drog fram över landet. Reformen medförde under 70-talet 

villkorslösa tvångsförflyttningar och skapandet av tusentals nya byar, vilket inte minst 

resulterade i ändlösa markkonflikter och total förvirring i frågor om gällande 

markrättigheter. 

I syfte att ställa till rätta efter den nationella ekonomiska kollaps som följde, 

liberaliserades landets tidigare planekonomi och världsbanken tryckte på för att införa 

äganderätt till fast egendom efter västerländsk modell. De långsiktiga följderna av 

världsbankens biståndsmetoder hade emellertid börjat debatteras internationellt, varför 

Tanzania inte lät böja sig, utan övervägde att behålla sitt nyttjanderättssystem. I kritiken 

emot världsbankens utvecklingsprogram poängterades de negativa sociala 

följdverkningarna av att utifrån vilja påtvinga färdiga koncept på samhällen som saknar 

såväl den erforderliga infrastrukturen som finansiella genomföranderesurser. 

Efter tio års förarbete antogs år 1999 den nya marklagstiftningen: Land Act och Village 

Land Act. Landsbygdsbefolkningens hävdade markområden skulle nu garanteras juridiskt 

skydd och de lokala stammarnas traditionella marklagar skulle respekteras. Alltsedan 

lagstiftningen trädde i kraft, år 2001, har implementeringen fortgått, men det synliga 

genomförandet tog fart först i och med tillsättandet av en expertgrupp i början av 2004. 

Senare samma år påbörjades distribuering av registreringsmaterial inom det första av en 

rad planerade pilotdistrikt. Man gav där också konkret undervisning i hur lagarna skulle 

tillämpas. Införandet av den nya lagstiftningen har sedan dess långsamt gjort framsteg, 

men är beroende av att utlovade medel skjuts till. Stor osäkerhet råder ännu kring 

tillgången på adekvata resurser, bland annat finansiering och tillräcklig tillgång på 

kompetent personal. Det är också tveksamt om det kommersiella bankväsendet kommer 

att godta den utlovade inteckningsmöjligheten för markägare till små marklotter. 

Ytterligare frågetecken reser sig kring huruvida de statliga restriktionerna för köp av 

mark inom byarna verkligen kommer att motverka en marknadsmässig, men osund, 

snedfördelning av ägandet till förmån för de välbärgade. 

I uppsatsens avslutande diskussion dras slutsatser av den tidigare gjorda jämförelsen 

mellan Tanzanias moderniserade right of occupancy system och ett system med 

äganderätt till mark. Skillnaden visar sig bland annat bestå i det inflytande och kontroll 

som staten fortfarande förfogar över i Tanzania. Avslutningsvis skisseras två olika 

framtida scenarier med avseende på de utmaningar som implementeringsprocessen och 

den nya lagstiftningen står inför. 

6

Table of contents 

Abstract 3 

Preface 4 

Acknowledgements 4 

Executive summary 4 

Summary in Swedish 6 

Table of contents 7 

1. Introduction 8 

1.1 Background and purpose of the study 8 

1.2 Objective and limitations 8 

1.3 Methodology 9 

1.4 Organisation of the paper 9 

1.5 Abbreviations 10 

2. Land politics 11 

2.1 The development of Tanzanian land politics 11 

2.2 Customary law 18 

2.3 The Right of Occupancy System 20 

2.4 Tanzanian land ideology 22 

3. Conceptual basics 24 

3.1 Property rights theory 24 

3.2 Comparison of rights 30 

3.2.1 The Freehold System 33 

3.2.2 The Right of Occupancy System 34 

4. Land-political challenges 37 

5. The new land legislation 43 

5.1 Presenting the land acts 43 

5.1.1 Land categories 44 

5.1.2 Land titles according to the Land Act 46 

5.1.3 Land titles according to the Village Land Act 46 

5.1.4 Land management 46 

5.2 The process of implementation 48 

6. Piloting the legislation 51 

6.1 Initial pilot area, the Mbozi district, Mbeya region 51 

6.2 Analysing the future impact of the legislation 52 

6.3 Interviews from the pilot area 56 

7. Final Discussion 61 

7.1 Right of occupancy versus freehold tenure 61 

7.2 Criticising the land acts 62 

7.3 Discussing the implementation 63 

8. References 69 

7

1. Introduction 

1.1 Background and purpose of the study 

The year 1999 marked a point of crucial importance in the making of Tanzanian 

legislation; the Land Act and the Village Land Act were passed in the parliament. The 

previous strong reliance on the British influenced Land Ordinance from 1923 was finally 

done away with. 

For the villagers, the new legislation promises far-reaching acknowledgement of their 

customary land rights. It also grants legal protection to the land rights of different 

vulnerable groups. The highly interesting question is, whether this legislative reform will 

succeed in overcoming some of the burdensome land-related inequalities and conflicts 

that to such a large extent hinder development in the Tanzanian countryside today. If so, 

the land acts and its implementation process might represent a break-through in rural 

development for Sub-Saharan Africa. Then an example will be given for other on-going 

land-reform processes in Africa. For the moment, though, the government of Tanzania is 

deeply involved in what might be the most crucial phase of all, the pilot-implementation 

phase. The outcome of this process is neither secure, nor easily predicted. 

The law was preceded by profound research through a presidential commission of inquiry 

submitting its report in 1992. Also the following National Land Policy from 1995 gave 

directions for the making of the law. The final legislation comprising of the Land Act and 

the Village Land Act of 1999 came into force in May 2001. 

In her publication, Wily (2003) gives an excellent introduction into the Village Land Act, 

a guide in how to handle the legislation in the villages. She maintains an essentially 

positive approach towards the potential of the legislation and its upcoming 

implementation process. 

Throughout the process of formulating the land bill, there has been a living debate on the 

content of the legislation and, in the wider scope, the influence of state control over 

adjudicative and administrative issues. Professor Issa Shivji, scholar and former chairman 

of the land commission, has since been one of the leading critics, and has through 

publications, articles and as speaker at conferences and sessions helped to keep the debate 

alive. Critique has also been directed from domestic CSOs such as, Haki Ardhi, TAWLA, 

LHRC, VOLIT and PINGO, as well as international NGOs, such as Oxfam and REPOA. 

1.2 Objective and limitations 

The objective of the field study has been to scrutinise land rights in the Tanzanian Right 

of Occupancy system, study the on-going implementation of the Village Land Act and 

conclude by making a brief prognosis on the implementation process, and a probable 

future development of the Tanzanian village land. The scope of the study is limited to the 

land rights in the rural areas where the Village Land Act is applicable. As the Village 

Land Act repeatedly refers to the Land Act for different provisions, the neglect in this 

thesis to mention both documents everywhere is a conscious decision, in order to simplify 

things for the reader. 

Furthermore, the important topic of land-dispute resolution is deliberately omitted. As it 

has shown formidable to beforehand measure and limit the scope of this kind of topic, the 

8

objective of the study has undergone quite a few amendments and reassessments. 

Nevertheless, the content of the final report is a condensation of economic as well as 

social implications of the implementation of the Village Land Act, without any 

pretensions of being complete. 

1.3 Methodology 

The main reason to perform the study on spot in Tanzania was to get hold of information 

through observations, interviews and literature. In order to gain experience from the 

implementation of the Village Land Act, I joined the Village Land Act Implementation 

Task Force, which was chaired by my conceptual coordinator, Mr Mutakyamilwa. The 

task force invited me to attend a week long seminar in the Bariadi district in November. 

I also paid visits to the University College of Land and Architectural Studies, UCLAS, in 

Dar es Salaam, where valuable literature suggestions were given, as well as possibilities 

to make interviews concerning the new legislation and its implementation. 

In January 2005, an interview journey to the Mbozi district was carried out. In this pilot 

district, the implementation had proceed the most, and was therefore an interesting area 

in which to make field interviews with district-level staff as well as village leaders. 

Large parts of the report are based on written sources. Ranging from official documents, 

such as the report of the presidential commission, the land policy and the land acts, 

through academically acknowledged literature, such as James and Fimbo’s research on 

customary law and Tanzanian land tenure, into conference-summaries on the topic, and 

various published and unpublished articles. 

The sequence describing Tanzanian land ideology (See chapter 2.4) is mainly based on 

material written by the former president of Tanzania, the late Julius Nyerere. When 

covering the debate on land matters, the Internet has shown to be a useful source. Being 

an initiated actor in the debate, the Oxfam UK has provided much space on their 

homepage covering articles, written both by their own staff, and by external sources. 

Summaries from proceedings of different land-related symposia and conferences have 

also been available this way. 

1.4 Organisation of the paper 

The report follows a chronological order, starting with a historical review in the second 

chapter where special attention is given to the three important land-political components: 

customary law, the right of occupancy system and the land ideology of independent 

Tanzania. 

Having covered this background to the specific Tanzanian circumstances, chapter three 

briefly surveys the contemporary theory of property rights in order to establish a 

foundation for the following discussion; comparing the freehold system with the right of 

occupancy system. Before entering into the present Tanzanian land legislation, a wider 

perspective is taken when surveying different land-political challenges in the fourth 

chapter. The topics chosen for this chapter are extracted from the general African landpolitical 

debate. Certainly, these subjects have also been on the agenda of the Tanzanian 

national land debate. Chapter five overviews the land legislation and describes the 

process of implementation as it has developed until the implementation conference 1 in 

early March 2005. Chapter six is based on the interview material and aims at inviting 

1 The Symposium on Implementation of the 1999 Land Act, 1-2 nd March 2005, Courtyard Hotel, Dar es Salaam 

9

different opinions to be heard on the content of the new land laws, as well as on the 

probable outcome of its intentions. In the final chapter, a concluding discussion is taking 

place, where forecasts of possible future scenarios are sketched. 

1.5 Abbreviations 

DFID United Kingdom Department for International Development 

IIED International Institute for Environment and Development 

MLHSD Ministry of Lands and Human Settlements Development 

NGO Non Governmental Organisation 

CSO Civil Society Organisation 

JOLIT Joint Livelihoods Initiative Tanzania 

LHRC Legal and Human Rights Centre 

PINGO Pastoralists Indigenous NGOs Forum 

REPOA Research and Poverty Alleviation 

TAWLA Tanzania Women Lawyers’ Association 

DLO District Land Officer 

VEO Village Executive Officer 

VLO Village Land Officer 

VC Village Chairman 

UCLAS University College of Land and Architectural Studies, Dar es 

Salaam 

10

2. Land politics 

Introduction 

In order to fully understand the principles and probable impact of the present land 

legislation, it is necessary to have knowledge in the domestic political and philosophical 

values, as well as in the history of land politics. This chapter gives a survey of the landrelated 

political development in Tanzania, and adds topical features of customary law, the 

right of occupancy system and Nyereres ideological vision concerning land. 

2.1 The development of Tanzanian land politics 

Early immigration waves 

Through several migration waves from the northern and the western parts of Africa, 

people with different languages and cultures melted together and added influence to 

eastern Africa. Bantu-speaking peoples immigrated during the centuries before Christ 

from the distant Niger Delta in West Africa. They outstripped the inhabitants by bringing 

advanced skills in agriculture, ironworks and steel production. In the 15 th century, a final 

wave of migration began when Nilotic peoples arrived from the region of southern 

Sudan. These mainly nomadic peoples continued their influx on the interior parts of the 

region through to the 18 th century. As their traditions and customs deviated from the 

resident Bantu tribes, clashes made them live separately, nurturing their own culture. The 

pastoral Maasai tribes of today are descendants from these Nilotic peoples. 

In the meantime, the much more accessible coastal regions faced a quite different 

development. Along the East African coast, permanent trade settlements started to 

establish around 1000 AD. In this way, Mediterranean influx, and later, influence from 

Arabia and Persia, mixed with the indigenous Bantu culture to form the evolving Swahili 

culture. During the following centuries, Arabic traders established outposts all along the 

coast, with its centre on the island of Zanzibar. These settlements flourished between the 

13 th and the 15 th centuries, with trade of ivory and gold, reaching as far as India and 

China. (Fitzpatrick, 2002:11f) 

The pre-colonial era 

As the first European explorer, the Portuguese Vasco da Gama reached East Africa in 

1498. A good two decades later, the Portuguese had subdued the entire coastline and had 

built forts at strategic locations. The Portuguese were in the early 18 th century displaced 

by Arabs from Oman, whom succeeded to penetrate the interior regions, establishing 

powerful trade routes. The commerce, including slave trade, grew to such importance that 

in the 1840s, the powerful sultan of Oman moved his capital to Zanzibar. Simultaneously, 

different European interests, primarily missionaries and explorers, began to penetrate the 

Tanzanian mainland. In 1868 Catholic priests established the first mainland mission 

station at Bagamoyo, as a refuge for ransomed slaves. The European explorers made 

several expeditions to the inland by following the Arabic caravan routes, discovering and 

mapping portions of the African continent. (Fitzpatrick, 2002:12f) One of them was the 

German adventurer and explorer Dr Karl Peters. Through dubious agreements with local 

11

chiefs in 1884, he was granted large tracts of land, to be held for all times. Peters 

established The German East Africa Company, which rapidly acquired imperial 

protection. This marked the beginning of the German influence in East Africa. (James, 

1971:13) 

Colonisation 

Until the 1870s, the concern for Africa by the European powers had remained marginal. 

Not more than ten per cent of the continent had been colonised. Beginning in the late 

1870s, Belgium, France, and increasingly Germany and Britain, showed competing 

interest in the remaining parts of Africa. During the Berlin Conferences of 1884-85 some 

ground rules for the South-Saharan development of Africa were laid out, determining 

how to go about territorial claims et cetera. Governed by a mix of political and 

commercial interests, armed expeditions rushed to the interior of Africa, ignoring existing 

natural and cultural frontiers in their claiming of land. (Perry, 1997:459ff) 

This activity, known as the scramble for Africa, resulted in that most of what now counts 

as mainland Tanzania together with Rwanda and Burundi came under the control of the 

German Empire, as German East Africa. Britain, as the competitor in this part of Africa, 

acquired what later became Kenya and Uganda, and also established a protectorate over 

the Zanzibar archipelago. (Commission report, 1994:8ff) 

Land policy in German East Africa 

Imperial Germany showed a great interest in land resources, not only by ruling the 

territory, but also by owning it. The state acted as landlord by having the radical titles 

ultimately vested in the state. A German imperial decree from 1895, proclaimed all land 

to be un-owned Crown land, vested in the German Empire. The only exceptions were 

land where proof of ownership could be shown, Land alienation was made in accordance 

with German law, following the German tradition of land tenure. As indigenous African 

land tenure systems were based on informal documentation and oral tradition, the land of 

the African inhabitants was regularly treated as unowned land and, hence, left with only 

permissive rights of occupation. Settlers in general, had acquired officially recognised 

documents of freehold, and were therefore treated as formal landowners. Although the 

German land policy required the settlers to respect the African habitations, allowing them 

at least four times the existing cultivated area for future expansion of the village, the 

German administration wanted to promote productivity, and was in reality generous in 

alienating land to settlers. Land was also alienated to foreigners in the townships. 

Notwithstanding the favouring of foreign settlers, grants of freeholds were not given 

unconditionally. The main practice was to alienate land for a term of years, with an 

option to convert to freehold, only after having successfully met the stated development 

conditions. This system of land tenure reflected both a desire to prevent speculation, as it 

encouraged land usage. (James, 1971:13f), (Commission report, 1994:9), (Okoth- 

Ogendo, 1999) 

Following imperialistic ideas, the colonial production structure was streamlined to meet 

the demands of the European industry. This meant a focus on export of minerals and 

other raw materials. A number of export crops were introduced and large-scale 

plantations established, producing coffee, tea, sisal and cotton. (Lunden, 1990:3), 

(Commission report, 1994:8) 

12

The British land policy 

Through the Versailles Treaty in 1919, Germany had to renounce all its rights in German 

East Africa. Freeholds held by German settlers, were considered enemy property, and 

were, as such, sold to settlers of other nationalities, mainly British. (Commission report, 

1994:9), (James, 1971:15) From 1922 the area, renamed Tanganyika, became 

administered by Britain; first as a mandate from the League of Nations and, after Second 

World War, as a United Nations Trust Territory. (Fitzpatrick, 2002:12) Rwanda and 

Burundi came under the control of Belgium. 

Under the British, all rights in relation to any public land were vested in, and became 

exercisable by the governor in trust for the monarch. The first land tenure statute 

applying to Tanganyika was the Land Ordinance, enacted in 1923. This land act declared 

all land in the territory, except freeholds acquired before the passage of the law, as being 

public land. All rights of this public land were placed under the governor of the territory, 

to be held as rights of occupancy for certain duration. (See chapter 2.3) Freehold titles 

and leases, once granted by the German administration, were inherited by the British and 

continued to exist. During the 42 years of British administration, not many new freeholds 

were granted. One reason for this was the policy of the trusteeship agreement, which 

Britain had signed with the League of Nations when accepting the mandate. It called for 

the administering authority to respect the rights, and safeguard the interests of the 

indigenous population. Native laws and customs, including their rights to land, should be 

acknowledged. (James, 1971:17) James asserts that “Although…the Land Ordinance 

accepted the principle of protecting native rights in land, it failed to establish a 

procedure to safeguard that principle”. (James, 1971:19) Despite the fact that these 

rights were being expressed in preambles, documents and statements of different kinds, 

they were by no means incorporated into the written legislation. (Commission report, 

1994:11ff) In addition, extensive power was given to the governor to decide upon land 

use and alienation in public land. It is assumable that the system was purposely made 

flexible in order to adjust to the shifting administrative policies adopted by the 

government from time to time. (Commission report, 1994:13) 

Independence 

Already in 1929, a political organisation called African Association (AA) was formed in 

Dar es Salaam. Being a forum for the revived nationalistic consciousness, the party 

responded to the demands for political action that was growing throughout the country. 

When, in 1958, the British government raised the question of introducing a proper 

freehold system in Tanganyika, the young leader of the nationalistic party, Julius 

Nyerere, opposed their arguments in an article entitled Mali ya Taifa (National Property). 

In this article, he outlines an ideological opinion on national property that is going to 

strongly influence the future land politics of independent Tanzania. (See also chapter 2.4) 

African Association was renamed TAA, that soon became TANU, Tanganyika Africa 

National Union, in 1959. Under the leadership of Julius Nyerere, TANU was quickly 

transformed into an efficient political organisation with national independence as its 

political top priority. The same year, 1959, Britain agreed on the establishment of internal 

self-government in Tanganyika. On the 9 th of December 1961, Tanganyika became an 

independent nation, and the following year it was established as a republic with Nyerere 

as its first president. On the 26 th of April 1964, Tanganyika formed a union with the 

13

newly independent island of Zanzibar, creating The United Republic of Tanzania. 

(Fitzpatrick, 2002:14) 

Socialist land tenure policy in Africa 

Since independence, socialism was embraced as the dominating political ideology of 

Tanzania. The speeches and writings of President Nyerere had a tremendous impact on 

the political direction in which the new born nation took off. In the making of an African 

Socialism, as the ideological path was called, land tenure was a matter of central interest. 

Already in the first five-year plan, 1964-69, land tenure reforms were in the making. The 

ineffective, traditional way of farming was issued, and the peasants were at first 

encouraged to voluntarily form collective farming villages. In the important doctrine, the 

Arusha Declaration of 1967, the ideological fundaments for the further development of 

the country, were laid down. This doctrine committed Tanzania to a policy called 

Socialism and Self Reliance (Ujamaa na kujitegemea). Initially, the ideology was 

leavened by an idealistic vision of collective achievements based on unselfish ambitions. 

Nyerere stressed an individualistic kind of socialism, based on traditional African values. 

The cornerstone was the vision of the Ujamaa village, zealously encouraging communal 

ownership and common achievements. (See boxed text,“The Ujamaa Village”) Basic 

goods and tools were to be commonly held and shared among the village members, while 

each individual was obligated to commonly work on the land. 

A desire to rid oneself from the colonial yoke and build something new, led Tanzania to 

establish contacts with other socialist states in Africa, as well as with the Soviet Union 

and China. Through the initiating of Tanzania’s second five-year plan, 1969-74, and the 

following Mwongozo manifest the nationalising of the country’s economy took off. 

Especially in the area of land tenure, these policies eventually took on the shape of direct 

state control. (Fitzpatrick, 2002:14f), (Hydén, 1972:42ff), (Lunden, 1990:4f) 

The Ujamaa Village 

The main idea with the Ujamaa village was to through cooperation achieve higher output than through 

individual farming. The Ujamaa village was also meant to be a proactive component in the rural 

development, a receiver of governmental funds in order to distribute welfare through educational and 

medical investments to the rural population. Being of central importance for the emerging socialist 

state, the Ujamaa village also held the seat of the local political officer. Later on, the Village Act of 

1975 stated directives for the Ujamaa village. The Act prescribed each family the right to some land 

within the village for their household farm. Initially, an area of at least an acre was prescribed for the 

family to settle down, build a house and have the possibility to grow crops of their own choice. Next to 

the household farm, the Ujamaa shamba (the village farm) was prioritised. These components formed 

the nucleus of the Ujamaa village. In the Ujamaa shamba, all able-bodied people residing in the village 

were required to work communally for at least two days a week. The village government planned which 

crops to grow and what to do with the surplus. Beside the household farm, a single family was not 

allowed to gain more land for themselves. Instead the block farm was supposed to fill that need. In 

those fields each household was given an allotment. The choice of crop and method of cultivation were 

again decided communally by the village government, although the tilling was to be done by each 

individual household, to whom the harvest also accrued. (Friis-Hansen, 1986) 

14

The villagisation reforms 

In order to lift the agricultural sector, already the Germans, followed by the British, had 

tried in different ways to gather the scattered peasant settlements into proper villages of a 

certain size. Such achievements were generally met by a compact resistance. 

Through the Arusha Declaration, the vision for the rural development was laid out, and 

called for a rapid implementation. To meet the aims of national self-reliance, the 

agricultural production had to improve considerably. This was done in three phases 

during 1967-76, succeeding each other with increasing compulsory characteristics. 

The first phase was characterised by voluntariness. Financial support and other benefits 

were being canalised through development funds to attract people to form Ujamaa 

villages. In 1969 a second phase was initiated through the regional villagisation 

campaigns. In order to take advantage of the need for reconstruction after the devastating 

flooding of river deltas (Mtwara and Lindi regions in 1969), and droughts (Dodoma 

district in 1970), major resettlements were implemented. During the period of 1969-73 

the number of people living in villages on the Tanzanian countryside increased from half 

a million to two million. Still, this constituted only 20 percent of the rural population, and 

the political impatience grew. 

The National Executive Committee initiated the third phase in 1973, when deciding that 

the whole rural population of Tanzania was to live in villages before 1976. The 

requirements of the peasants was now, and foremost, to move into villages, and only 

secondly, to cultivate the land communally. Within two years after the initiating of 

Operation Vijiji, almost all peasants had been moved to villages, with the result that some 

of the existing villages more than doubled its population during this short period of time. 

The great implementation stress made it impossible to follow the procedures of 

carefulness that characterised the earlier village planning. Instead, the new village 

population was, in an unplanned manner, allotted land hastily expropriated from peasants 

that have been living in the village for generations. (Friis-Hansen, 1986, p.20ff) The 

effect that these forced resettlements had on social structures, are hard to fathom, save the 

impact on the land tenure and the environment. Considering that the operation coincided 

with the draught of 1973-74, the rural situation became very vulnerable, resulting in 

starvation and widespread suffering. (Maliyamkono & Bagachwa, 1990:6) 

Land tenure after independence 

There is no doubt that the post-independence government took over the conceptual 

framework of land tenure from the colonial system. Only slightly amended, the British 

Land Ordinance was still forming the foundation of the Tanzanian land legislation. (See 

Figure 2.2) The major modification concerned the consolidation of the concept of land 

tenure. All sorts of freeholds and enfranchisements were converted to leaseholds for 

definite periods, under the right of occupancy regime. Thereby, literally all land was 

public land, now being vested in the president as a trustee for the people, instead of in the 

British governor on behalf of the monarch. (Commission report, 1994:19f) The 

commission report underlines the fact that this conversion was not a matter of 

nationalisation, but of reducing the time frame of interests in land from a perpetual to a 

definite period of time, the maximum being 99 years. (Commission report, 1994:17f) No 

land was taken from previous freehold owners, even though some settlers decided to 

leave the country, abandoning their land. Elements of nationalisation instead appeared 

15

when, through the issuing of specific laws, coffee and sisal estates were taken over and 

vested in parastatal organisations. 2 (Zainab, 2004:10), (Commission report, 1994:20) 

Precolonial period 

German period 

(1884-1919) 

British period 

(1922-1961) 

Tanzanian 

independence 

(1961-1999) 

Imperial Crown Land vested in the German Empire 

on behalf of the German emperor 

Unoccupied land 


Public Land vested in the governor 

on behalf of the British monarch 

Unoccupied land Freehold 

Public Land vested in the president 

on behalf of the people 


Freehold 

Occupied land held under a variety of 

customary land-tenure practises 

(including semi-feudal forms) 

Occupied land 

Occupied land, 

deemed Right of Occupancy (from 1928) 


granted Right of Occupancy (from 1928) 


deemed Right of Occupancy 


granted Right of Occupancy 

Figure 2.2 

The figure aims to give an orientation in how the different land categories relate to each other, how the 

tenure structure is being inherited between the regimes, and to give a hint of the comparative magnitude of 

the land-tenure institutes. 

Consequences of the villagisation 

The Arusha Declaration, giving rise to the villagisation process, the establishment of 

parastatal large-scale agricultural companies et cetera, brought about profound 

consequences for the land tenure system in the country. The land-reform development 

that started with dialogues between state officials and small-holders concerning 

compensation, and location of new villages for the alienation of customary land, ended in 

forced villagisation campaigns backed up by coercive laws. A set of legislations in the 

1970s implied the possibility to extinguish customary rights within specified areas 

2 Among these laws were the Coffee Estate (Acquisition and Regrant) Act 1973, the Sisal Estates (Acquisition and Regrant) Act 1974, 

and the Rural Farmland (Acquisition and Regrant) Act 1966. The official reason was to overcome mismanagement of the targeted 

farms. 

16

without due process of law. (Havnevik & Hårsmar, 1999:88) After such legal turmoil, 

there is no wonder that complications eventually appeared. The land commission asserts 

that, during the most furious period, 1973-1976, the villagisation itself, “was not 

preceded by any enabling legislation, nor was any existing piece of legislation cited, or 

applied to enable such an exercise”. It also reports that the existing customary land 

tenure systems had been totally disregarded, and that no thought seemed to have been 

given to the future land tenure in the newly established villages. (Commission report, 

1994:43) 

National crisis and financial liberalisation 

During the first ten years as an independent state, Tanzania improved in many areas. Its 

independent socialistic aspirations caused international attention, and Tanzania soon 

became exemplary among African countries in education, health care and rural 

development. However, a domestic political stagnation, reinforced by the unfavourable 

international economic development, the break-up of the East African Community, 

repeated draughts and a costly military intervention in Uganda, gradually put the country 

to the brink of catastrophe. In the mid-80s, Nyerere resigned from the presidency, and 

was succeeded by the more market-oriented, Ali Hassan Mwinyi. The financial situation, 

as well as pressure on democratic reforms from donors, forced Tanzania to take part in an 

economic-recovery programme. The International Monetary Fund (IMF) imposed 

extensive liberalisation in the financial system of the nation. Through a supplement to the 

constitution in 1992, the one-party system, created in 1977, was abolished. The first 

multi-party election was held in 1995. (Heldgaard, 2005), (UI, 2005) 

The devolution of political monopoly 

Through a merger between TANU and the Zanzibar socialists, ASP, in 1977, the Revolutionary 

Party, CCM (Chama Cha Mapinduzi), was created. The same year, a new constitution was enacted, 

declaring Tanzania as a one-party state. Having representatives in all village leaderships, as well 

as at semi-local, district and regional levels, CCM autocratically gained control of virtually all 

political activity in the land. While lacking opposition, the solitary party gradually stiffened, 

developing an inefficient bureaucracy with corrupt elements. In order to prevent criticism and what 

could possibly threaten their power, independent trade unions, cooperative movements and the free 

press was eventually abolished. (Heldgaard, 2005) 

Land tenure during liberalisation 

Doubtlessly, the tangled rural land tenure situation would cause big future problems if not 

quickly being dealt with. As a response, the government in 1987 urgently initiated the 

Village Titling Programme. The intention was to survey and demarcate village borders in 

order to secure a single right of occupancy for the whole village. Thereafter, the village 

council were to grant sub-titles, i.e. leases, to the villagers. The land commission argues 

that this handling aimed at abolishing the traditional land institution, thus revolutionizing 

the customary land tenure system. (Commission report, 1994:46f) However, the action 

turned out to be not only slow and expensive, but also assailed with legal and procedural 

problems. As existing deemed rights on village land was not properly cleared, double 

allocation aroused, causing considerable confusion. (Havnevik & Hårsmar, 1999:89) 

17

Centrally approved alienations 

The land commission also seriously criticised a number of controversial alienations of 

village land that, until as late as in the 1990s, were undertaken to promote investments. 

Almost without exceptions, these alienations intruded on customary land and village 

activities, whether it affected small-holding farming or pastoral cattle keeping. These 

situations accentuated the insecurity of tenure for the customary land rights. (Havnevik & 

Hårsmar, 1999:90ff), (Commission report, 1994:30) 

Amplified land confusion 

Summarising their investigation, the land commission explicitly states that the 

villagisation period left not much but legal confusion in land matters. (Commission 

report, 1994:44ff) The political liberalisation led to that the control power of the CCM 

was gradually broken down. Now, complaints over the abuses and injustices performed 

during the villagisation period, started to be heard from all around the country. Land 

owners of alienated farms and estates, reclaimed their previous rights to land, held under 

customary tenure. (Havnevik & Hårsmar, 1999:93) A widespread questioning of the 

legacy of the villagisation reforms created confusion about which legislation should 

govern land tenure in the villages. The courts inclined to uphold the pre-villagisation 

customary land titles, when colliding with post-villagisation allocations. (Commission 

report, 1994:45) This legal confusion and policy vacuum on land matters, led to the 

appointment of a land commission 3 in early 1991. (Commission report, 1994:xii ff), 

(Havnevik & Hårsmar, 1999:93) 

2.2 Customary law 

Customary law in Africa is the non-formal complex of codes of behaviour and social 

control that have guided rural life in tribes and societies from generation to generation. 

These “laws“ vary among societies and also show local differences between villages 

within the same tribe. 

It is made up of fragments of rules, customs and taboos embedded in the tradition and 

comprises practical knowledge about methods of land management, procedures for 

dispute settlement, rules for social privileges and obligations within the society, as well 

as rules for leadership succession et cetera. (Ndjovu, 2003:75) Significant for customary 

laws is the oral tradition, whereas written documentation has not yet been fully accepted. 

Customary laws may seem conservative in preserving old manners and ethics, but they 

are also dynamic through their ability to transform over the years. (James, 1971:61f) 

Although the official land legislation in Tanzania has formally recognised customary 

laws since the 1928 amendment of the Land Ordinance, (See chapter 2.3) directions on 

how to deal with these customary laws have never become incorporated in any written 

legislation, and have therefore often been neglected by the officials. (James, 1971:96f) 

3 The Presidential Commission of Inquiry into Land Matters, appointed in January 1991, were given as terms of reference: i) to hear 

complaints from the general public concerning land, ii) to identify the basic causes of land disputes and recommend means for settling 

land disputes, iii) to review current matters of policy and recommend changes concerning allocation of land, land tenure, land use and 

land development, iv) to analyse the structures of institutions involved in land matters, intending to identify problems of overlapping 

of powers and to make recommendations. 

18

Customary view on land value and security of tenure 

Except for a few areas in Tanzania, land has always been abundant. Every young family 

was allotted as much land for cultivation as they could clear and manage in the vicinity of 

the village. (van den Brink, 2003:6) The prevailing practice was either shifting 

cultivation, where old fields after some years of cultivation were left fallow in order to 

recover, or transhumance, requiring a more mobile lifestyle. This way of farming brought 

about a flexible attitude towards the holding of land and formed the base for the 

traditional land-rights system. Instead of emphasizing the perpetual ownership of the plot 

itself, it was the temporary occupation, the efforts laid down in the farming, which 

created security of tenure. (Ndjovu, 2003:75) The abundance of land, together with the 

traditional belief that land was given by God for free to all men, caused the view that land 

had no economic value. Instead it was the productive efforts made upon the land that was 

important (James, 1971:62), (Ndjovu, 2003:74) Out of these traditional beliefs the widely 

used concept of unexhausted improvements has come. The concept includes 

improvements of many kinds, which invariably increase the productive capacity, the 

utility or amenity of standing crops or growing produce. 4 (Ndjovu, 2003:74) 

Traditionally, land security is related to the idea that land value is created through labour. 

Security of tenure comes namely with continuity of cultivation. Abandoned fields would 

after some years be returned to the village, in order to be allotted anew to someone who 

could make better use of them. On top of the individually used land, being a part of the 

village also included equal and non-exclusive rights in the village commons. For every 

village, there are locally adapted rules and customs, many of them inherited from 

previous generations, on how to deal with the common areas. 

Customary laws normally recognise exchange of land between land-holders within the 

same community. When involving outsiders, the exchange is sometimes surrounded by 

restrictions, ranging from outright prohibition of sale to outsiders, to requiring the 

fulfilment of certain conditions, for example to join the community. (James, 1971:64ff) 

Exceptions within customary land tenure 

In areas where perennial cash crops are cultivated, a tendency towards recognition of 

individual and lineage proprietary land rights, tend to occur. This development disrupts 

the traditional pattern of land use and disturbs the community’s power to allocate land. 

(James, 1971:62f) The same trend is also unfolded in areas where land has become 

scarce. Under such circumstances, land acquires an intrinsic value, and what James calls, 

“a development of a private sector in customary law“ is at hand. (James, 1971:63) 

There are tangible differences in how different customary laws have been influencing the 

village life among the rural regions. James and Fimbo recall the historical development 

where certain tribes have exercised feudal-like influence on inferior tribes, in a 

landlord/tenant-like relationship. (James & Fimbo, 1972) (Commission report, 1994:17f) 

These tenure forms may have been even more incompatible than the freehold tenure with 

the ideology of independent Tanzania. Nevertheless, it lasted until 1968 5 before these 

types of feudalism were finally abolished. (Commission report, 1994:18) The freehold 

tenure was abolished already in 1963 6 when first being turned into government 

4 Ndjovu mentions following assets as example of unexhausted improvements, (from First Schedule of the Land Regulations 1948): 

farm buildings, fencing, water burrows, trees or live hedges, walls, wells, reclamation of swamp land, road making, bridges, clearing 

land for agricultural purposes; water boring, water races, sheep or cattle dips, embankments or protective works of any kind, longlived 

crops, water tanks, irrigation works, fixed machinery, reservoirs, dams of permanent nature etc. 

19

leaseholds with a definite period, the maximum being 99 years, and later into granted 

rights of occupancy. 

Customary leadership 

According to tradition, the rural leadership were usually chiefs or elders exercising their 

leadership functions on behalf of the tribe. Customary land was under the direct control 

of the chiefs who were guardians of customary law. (Interview, Mutakyamilwa) During 

colonial days, as well as after independence, a few structure reforms concerning the 

native authority were launched. Some of these laws acknowledged the traditional 

authorities 7 , whereas others intended to abolish the chieftaincy 8 . (James, 1971:65f) 

2.3 The Right of Occupancy System 

The legal institution of right of occupancy was imported from the British colony of 

Northern Nigeria, where it was developed, and given statutory recognition in 1910. 

Although the right of occupancy is not a purely customary law conception, it has a 

precursor in the customary law system. (James, 1971:93ff) It was primarily intended to 

meet the need of connecting the customary system of land tenure with the interests of the 

colonial system. 

Right of occupancy in Tanzania 

The first definition of the Tanzanian right of occupancy is being vaguely described in the 

Land Tenure Ordinance of 1923 9 as “a title to the use and occupation of land“. Being 

criticised by the League of Nations for not enough recognising and protecting the land 

rights of indigenous people, a second, more precise, definition was given in the Land 

Ordinance of 1928 10 where it was stated as, “the title of a native or a native community 

lawfully using and occupying land in accordance with native law and custom“. (James, 

1971:96f) Since then, a dual system of land tenure exists in Tanzania embracing deemed 

rights of occupancy, which allowed natives the right to land according to their customary 

laws, and granted rights of occupancy, which secured mainly foreign immigrants and 

companies well defined and legally protected rights to land according to a British model. 

The deemed rights of occupancy, though, remained only declaratory, and was neither 

brought within the public sector of the land tenure structure, nor explicitly mentioned in 

any law until the current legislation was passed in 1999. (Ndjovu, 2003:76), (James, 

1971:97) Through the land acts, a right of occupancy is to be understood as ”a title to the 

use and occupation of land, and includes the title of a Tanzanian citizen of African 

descent…” or a community thereof ”using and occupying land in accordance with 

customary law.” (Interview, Mutakyamilwa), (LA 1999:2), (VLA 1999:2) 

5 The first attempt to revoke the semi-feudal landlord/tenant relationship was through The Nyarubanja Enfranchisement Act 1965, but 

as this law failed to address the many different forms of feudal tenure around the nation, The Customary Leaseholds 

(Enfranchisement) Act, 1968 was enacted three years later. 

6 Through The Freehold Titles (Conversion) and Government Leases Act, 1963 and the following Government Leaseholds 

(Conversion to Right of Occupancy) Act, 1969 

7 

The Native Authority Ordinance, Cap 72 

8 

African Chiefs Ordinance (Repeal) Act, 1963 

9 

Ordinance No. 3/1923, Section 

5 

10 

Ordinance No. 7/1928 

20

A form of leasehold 

The right of occupancy system in its statutory form is built on the leasehold principle. 

The carrying idea is that the radical title, i.e. the ultimate ownership and control of land, 

belongs to the community, entrusting the government its legal instruments. (Ndjovu, 

2003:76) At a first glance, the principle seems to have been adopted from the customary 

view of land, although enlarged to the national level instead of being rooted in the local 

context of the village or the tribe. It might, though, be precisely this distinction that 

turned the concept around. As soon as the principle was loosened from its local 

foundation, it was also robbed of its distinctive character, namely that of being locally 

anchored and informally managed. Having completed this transformation, the right of 

occupancy turned out to well suit the intentions of the British administration to 

effectively control land utilisation. Noteworthy in this sense is, that the conceptual 

framework that lies behind the Land Ordinance has been imported virtually unaltered into 

the new land acts. The statement in the new legislation, “All land in Tanzania is public 

land vested in the President as a trustee on behalf of all citizens“, is merely replicated 

from the British law, with the principle difference that the previous word governor, as a 

representative for the imperial crown, has been replaced with the republican president. 

(Commission report, 1994:19) Critics hold that it is the same idea of centralisation and 

control that governs both writings and their underlying legal frameworks. 

(Shivji, 1999(1)) 

In one area, though, the independent government made immediate amendments in the 

inherited land legislation. Within the first years after independence, all different types of 

freehold titles, issued during the colonial period, were repealed and converted into 

government leaseholds for a definite period of time. 11 (Commission report, 1994:18) 

Conditions 

The right of occupancy system shows similarity to a leasehold system by granting rights 

to use the land for a fixed term of certain duration. Three main durations were given, 

depending on the use of land. For residential development, 33 years; for commercial 

property and farms, 66 years; and for agricultural purposes, 99 years. (Ndjovu, 2003:71) 

As will be seen in chapter 5, the Village Land Act 1999 introduces infinite duration for 

villagers in the countryside. (VLA 1999:27) Keeping land under the radical title of the 

central government allows it to ascribe conditions to the use and maintenance of land. 

This is meant to avoid undesired land speculation or abuse of property rights. A primary 

condition in order to keep the accorded right to land is, that the land must be under 

continuous utilisation. (LA 1999:34, VLA 1999:29) This condition has, also traditionally, 

been imperative for the security of tenure. (See chapter 2.2) (Ndjovu, 2003:72) 

11 Freehold Titles (Conversion) and Government Leases Act 1963, Right of Occupancy (Development Conditions) Act 1963, 

Government Leaseholds (Conversion to Right of Occupancy) Act 1965 

21

2.4 Tanzanian land ideology 

A few years before the independence of Tanganyika, Julius Nyerere formulated his 

conception of land tenure, which a few years later became part of the established 

ideology in the new born independent African nation. In a pamphlet named National 

Property 12 , published in 1958, Nyerere confronts the injustices he finds in the freehold 

system, and the consequences it would bring to the Tanganyikan society if being 

introduced. In a desire to avoid the drawbacks from both the freehold system, and the 

old-fashioned customary system, Nyerere discusses the philosophical foundation of an 

alternative land tenure system. Thanks to the working out of the new legislation, some of 

these topics are once again put on the agenda of national discussion. 

Succession of ownership 

Being deeply rooted in the principles of African traditionalism, Nyerere’s argumentation 

is based on the idea that land, in the same manner as air and water, is no single mans 

property. Instead it is a gift of God given to all people. Nyerere questions what authorizes 

someone the right to possess land, thus refusing the whole world this right of ownership. 

Accordingly, he argues that no one has any better right to land than the other; neither 

yesterdays owner, nor the present generation or the one to come. Hence, access to land 

should be a matter of temporary tenancy. Nyerere holds that all citizens are provided with 

as equal rights to land as possible only when land ownership is seen as a succession of 

expiring tenancies. 

Public property 

In order to preserve accessibility to land also for coming generations, land should remain 

public property. If acknowledging the idea that everybody is but a mere tenant of land, 

which does not actually belong to him, it would be wrong to distribute land on an 

ownership basis. Instead of a freehold system, where all decisions of property rights are 

individually owned, land should be publicly owned, with individual rights granted 

through leaseholds. When publicly owned, Nyerere reasons, the right to decide on land 

use, will not be in the hands of individuals; instead all citizens decides on regulations 

governing the use of land. Hence, “Land remains the property of the public, but the 

leaseholder has the promise of the public, all his fellow citizens, that he will not be 

interfered with in his right to use that land“. Nyerere sketches within the leasehold 

system, the fulfilment of the three main requirements to secure the leaseholder a 

predictable future. Firstly, the supply of sufficient land, then the assurance of not being 

evicted from the land, and finally, the availability of capital needed to invest in the land. 

In exchange, the leaseholder must submit to the terms of the leasehold agreement in using 

and maintaining the land. 

Land value 

Closely connected to this topic, Nyerere discusses the value of added labour. (See also 

chapter 2.2) By transforming a piece of land through her own labour, a person is enabled 

to lay claim of the added value to that piece of land. When leaving the land, she is 

entitled to compensation for the value of the unexhausted improvements being made, 

12 In Swahili titled, ”Mali ya Taifa” 

22

including clearing, plantations, constructions et cetera. Hence, a fundamental policy was 

not to recognise any value to bare land, but only to the improvements made to the land. In 

the principally important Arusha Declaration, this idea is stated as a policy of nonmarketability 

of land. (Ndjovu, 2003:79) One of the assumptions supporting this policy 

was to keep the price of land low through suppressing the development of a land market. 

The policy aimed at keeping land prices regulated in the interest of the poor. (Interview, 

Mutakyamilwa, 2004-12-13) 

Confronting the freehold system 

Nyerere’s strongest argument against a freehold system is to prevent a separation of the 

population into unequal classes. In his view, he imagines a small group of landlords on 

the one hand, holding ownership rights; and on the other, a large group of tenants being 

dependent of the goodwill of the landlords. Nyerere fears that such a development would 

create inequality and violent antagonism among the people. A freehold system would 

also encourage exploiters and speculators in land, preventing access to land by true land 

users with insufficient finances. Nyerere clearly states that the system of leasehold would 

effectively prevent such biases. It would not only avoid the unjust paying of land rents to 

private landlords, but instead promote the more equal paying of land rents to the 

government by all land-holders. 

23

3. Conceptual basics 

Introduction 

The issue of property rights in relation to land certainly catches political attention. 

According to some viewpoints, land represents considerable economic values, whereas 

other sentiments connect the holding of land mainly to social values. This chapter aims to 

provide insights into the terminology of property rights theory. This is necessary in order 

to further discuss the topic applied to the Tanzanian reality, as well as to more general 

African land issues. In the latter part of the chapter, a comparison is taking place between 

the Tanzanian system of right of occupancy and a general position of the ownership 

model, here identified as the freehold system. 

3.1 Property rights theory 

Land as limited resource, scarcity and land value 

Land is quite obviously a limited resource. The potential limitation of having a finite 

amount of land does not necessarily imply scarcity of land. On the contrary, if divided 

equally, there is more than enough land for everyone in the world. It is precisely this 

issue, the biased distribution of land, which is one of the main reasons for the scarcityrelated 

land problems of today. Closely related to biased distribution is the fact that not 

all land is equally attractive from a human point of view. Yet another contributing factor, 

especially pressurising urban and semi-urban areas in developing countries, is the 

increasing population density. 

Looking at the African context, the population density has been kept low until the middle 

of the twentieth century. Hence, land has always been an abundant resource. Since then, 

an exploding population growth, land degradation and unstable climatic conditions, have 

increased the demand for land. Especially fertile land and land containing important and 

profitable natural resources 13 have been subject to increased attention. This has resulted 

in local land scarcity, creating an emerging land market and an increased awareness of 

the tradable value of land. As will be shown, access to land has strong social 

implications, and cannot therefore simply be treated like any other tradable commodity. 

Instead, the handling of rights to land needs to be enclosed with careful and competent 

regulations. (Quan, 2003) 14 , (Interview, Mutakyamilwa) 

Alternative land use, institutions 

Besides scarcity, alternative land use is a factor determining the demand for, as well as 

the value of land. The choice to use land for a certain purpose mostly prevents it from 

being used to satisfy other needs. Such competing interest causes decisions to be made 

that will have socio-economic effect. While similar occurrences show up in all societies, 

each society has developed a structure of incentives to determine which rules and values 

the distribution of land is to follow. Pejovich names these structures institutions, and 

explains them as being “legal, administrative and customary arrangements for repeated 

13 Natural resources such as hardwood forests, valuable or easily accessible minerals and oil, but also wildlife and scenic views. 

14 Julian Quan was at that time Land Policy Advicer at the U.K. Department for International Development, DFID 

24

human interaction”. These institutions include an agreed upon system of behaviour and a 

chain of influence concerning land issues. Simply stated, they determine the land-use 

priority. Pejovich tracks the institutions to be “based on customs including past 

experiences, taboos, standards of behaviour and perceptions that individuals had formed 

about the world around them”. (Pejovich, 1990:3f) In western societies, these values 

have mainly been of economic nature. Looking back, it appears like economic values 

easily result in short-range profitability calculations, lacking sustainable perspectives on 

the environment or on social relations. In many indigenous societies, on the other hand, 

values such as social comfort and equality are highly preferred. Here the alternative land 

use is less a matter of maximised effectiveness from a monetary point of view, than of 

social relations and interactions with the neighbouring land-holders. It seems like the 

interdependence and co-operation favouring a social structure tends to become greater 

where the financial resources are scarce. Another conclusion might be that financial 

independence inherently brings about an independent behaviour, even though cooperation 

would have been a more efficient way. Nevertheless, with changes in the 

structure of the surrounding world, also the customary institutions are being subject to 

transformation. As the society grows more complex, the core values of the customary 

institutions tend to become more formalised, and are eventually being replaced by 

statutory laws and centrally administered regulations. 

Property as a social relation 

According to modern academic theory, owning property is less a matter of owning a 

physical resource, than it gives access to a bundle of rights attached to the resource. 

Ownership, hence, represents the rights to use a resource in a specified and limited way. 

(Alchian & Demsetz, 1973:17) These rights would have no value at all, if not being 

recognised by the surrounding society. Thus, ”property is a social relation, defining what 

an individual, or group, can and cannot do with a certain thing, and which needs to be 

respected by others.” (van den Brink, 2003:2) 15 This relation is valid in all types of 

ownerships, but is especially obvious when related to land and property rights. Having 

this assessment in mind, the frequent confusion of the terms property and ownership 

appears explicable as they both refer to the rights connected to a piece of land. 

Scarcity as a driving force 

As instruments of society, property rights are guiding social behaviour for both 

beneficiaries and outsiders. (Demsetz, 1967:247f) Regardless if the tenure system allows 

formal ownership, or usufruct rights of different types, the system regulates certain rights 

and obligations for right holders as well as outsiders. (See chapter 3.2) 

These socially sanctioned rights of action are, according to Alchian and Demsetz, 

responding to a specific social system. (Alchian & Demsetz, 1973:17) This system is 

“relying on techniques, rules, or customs to resolve conflicts that arise in the use of 

scarce resources“. Pejovich states it similarly, “Property rights are relations among men 

that arise from the existence of scarce goods and portain to their use” (Pejovich, 

1990:27) In order to be useful, the property rights have to be accepted, clearly defined, 

well understood and strictly enforced. (van den Brink, 2003:8) It may be assumed that 

15 Rogier van den Brink was at that time Land Reform and Land Policy Coordinator at the World Bank, Africa Region, in South 

Africa. The following quotations are taken from a preliminary draft of a paper on land policy and land reform in Sub-Saharan Africa. 

It should be noted that the opinions expressed in the paper not necessary have to be those of the World Bank. 

25

homogenous societies with common values, and where the cultural control is strong, have 

developed less complex systems of property rights. 

Diverse African land tenure 

As the societies grow more diverse and complex, the rules of property rights have to be 

more explicitly stated. James and Fimbo emphasises the great diversity and variation of 

land tenure systems also within societies practising customary land tenure. They stress 

that there is no such thing as a corporate system of African customary land tenure. 

Instead they reason that the variety of customary land tenure in Africa is as diversified as 

the structure of the individual societies. “A record on African land tenure systems would 

certainly differ from and be wider in scope than a record on different Western land 

tenure systems.” (James & Fimbo, 1973:5) In relation to western societies, though, 

African societies do share corporate values. James and Fimbo explain that the difference 

lies in that law in the western context is founded on an individualistic assumption, 

whereas in the African context, it is based on a collectivist organisation. (James & Fimbo, 

1973:5) As land in western societies is considered capable of being owned in similar 

ways as other goods, the bulk of land tenure rules are therefore concerned with an 

analysis of the land rights of the individual. The emphasis is laid upon the acquisition of 

rights, as well as on the methods of transferring and extinguishing these rights. 

For the Africans, on the other hand, land is more than just property. “Land continues to 

be the central force around which the rural people’s spiritual and cultural life is 

organised. Tampering with land therefore means tampering with the social/psychological 

fabric of the society“. (Commission report, 1994:119) 

The land tenure rules form a part of the whole complex of culture. Contrary to the 

individualistic western organisation, it is dominated by the need to protect units of groups 

to specific parcels of land. The corpus of law for each group is directed towards defining 

the rights and duties of everyone within the group, aiming at maintaining the interests of 

that unit against outsiders. The central idea of land tenure rules have thus been one of 

controls, emphasising controls, not titles, as the dominant aspect of land law. (James & 

Fimbo, 1973:6) (See also chapter 2.2) 

Three main forms of ownership 

Keeping in mind that ownership represents a bundle of rights, three forms of ownership 

appears, which will be further explained below. These are according to Demsetz, 

communal ownership, private/individual ownership and state ownership. (Demsetz 

1967:353) Other scholars add lack of ownership to the list. (van den Brink, 2003:4) 

With communal ownership, Demsetz means rights which can be exercised by all 

members of the community. No one, not even the state, have the right to interfere with 

any person’s exercise of communally owned rights. As will be shown later in the chapter, 

it is important to clearly define the society in order to find out the circle of beneficiaries 

of the communal rights in question. 

Private ownership, on the other hand, implies that the community recognises the owner’s 

right to exclude foreigners from exercising private or communal rights on his territory. 

Finally, state ownership implies that the state may, by way of exception, exclude anyone 

from the use of a right, as long as the state follows accepted political procedures for 

determining who may not use state-owned property. (Demsetz, 1967:353f) 

26

Common, communal and public property 

As land tenure in Africa is based on a collectivist organisation, there is a need to bring 

clarity in the slightly confusing terminology alluding to collectivist types of ownership. 

Notably often, the words common property, communal property, public property and 

state property are wrongly used as synonyms. 

Private property Communal property 

Individual property Common/communal property State / public property 

Figure 3.1 

The figure aims to sort out the disparities between private and communal property (ownership). 

As property is defined to comprise a bundle of socially accepted rights, the terms property, property rights 

and ownership may be understood similarly. 

The two main types of ownership are private and communal property rights. Within the 

private sector we distinguish between individual and common property rights, where 

common property simply represents private property for the group. (Bromley, 1992:11) 

The limited community holds the land in common, whereby the utilisation of portions of 

land may be allotted to individuals within the group. In the communal sector, communal 

and state/public property rights are separated. Normally, both common and communal 

property refers to a limited community, whereas state and public property means property 

where a larger group of people, a city or a whole nation, have access. (van den Brink, 

2003:3) 

Communal ownership 

Communal ownership, including state or public ownership, means that property rights are 

exercised within a defined group of people. Individuals within this group are sharing the 

communal property, although they cannot normally claim any specific piece of land. 

The use, maintenance and return from the communal area, excluding public land, is split 

between the shareholders according to traditional, or agreed upon, rules and procedures. 

(van den Brink, 2003:3f) Village commons in rural areas of Tanzania for example, are 

used as reserve land for the future expansion of the village. How this traditional practice 

will be dealt with in the new legislation is not yet clear. Van den Brink maintains that 

nothing refrains the community from assigning certain rights to individuals, and others to 

the group as a whole also within a common property regime. Also the right to inherit, 

exchange, rent, or sell its share will be decided upon by the group. (v.d. Brink, 2003:4) 

27

The issue of open access 

The situation of no ownership, also called open access, occurs when the “property rules 

applying to natural resources are neither able to be defined, nor enforced, by the 

communities“. (van den Brink, 2003:4) Under such conditions there is no defined group 

of owners, land security have ceased to exist, and access to the resources is available to 

anyone. (van den Brink, 2003:4) The tragedy of this regime is that it rewards greed, and 

counteracts a sustainable development. A restraining attitude from a few individuals, in 

order to promote sustainability, will only reward the profit of others. Unless an agreement 

is established, or the state takes authority to restrict the rapacity, the situation will become 

destructive. Disastrous large-scale examples of this behaviour are the continuous over 

fish of lakes and oceans, the overuse of subsoil water, especially the non-renewable fossil 

aquifers, and the worldwide pollution of lakes, oceans, and the atmosphere. The result in 

these and similar areas is likely to be a situation where unsustainable overuse brings 

tragic consequences to the supply of scarce resources and species. 16 

Private ownership 

Private ownership is often seen as the strongest form of land-holding. It bears far going 

exclusive rights for the rights-holder, and is limited only by restrictions explicitly stated 

in the law. In individualistic societies, this implies a strong link between the owner’s 

choice to use the asset, and him bearing the consequences thereof. (Pejovich, 1990:28) 

But although this is true, van den Brink points out that property rights under private 

ownership, similar to those under communal ownership, are always restricted by 

regulations. “Under a communal property regime, individual rights are regulated by the 

community, whereas, under a private property regime, individual rights are regulated by 

the state.“ (van den Brink, 2003:4) Consequently, the scope for freedom of action for the 

private land-holder is not at all unlimited, but is to be decided by the state. It is here that 

the country-specific and often politically coloured land policy is being applied, which 

among the nations shows a broad variety of attitudes towards interference by the state. 

To elucidate the situation where also private ownership accomplishes open access like 

behaviour, let us use a classic example. Imagine a brook running through a 

neighbourhood, crossing several private properties. None of the landowners have the 

right to exclude the others from using the water except when it passes their own property. 

Likewise, no one have the power, except through negotiation, to hinder anyone else from 

using the water when it passes their own plot. Whatever the landowners situated upstreams 

decides to do, whether it is tapping water for irrigation, or disposing waste into 

the brook, will unconditionally have impact on the flow, or the quality of the water 

received down-streams. According to the contract of private ownership, those situated 

up-streams have no incentives to act responsibly, other than for reasons of goodwill. 

(Demsetz, 1967:356) Here the definition of property as a social relation comes in. In 

societies with strong cultural control, certain behaviour is simply not acceptable, whereas 

where regulations have substituted the control mechanisms, outright prohibition first have 

to be regulated in the written law, and then strictly policed, in order to become effective. 

16 Deriving from Hardin’s renowned article named The tragedy of the commons (Hardin, 1968) Demsetz confusingly uses the term 

communal rights when describing the unsustainable incentives connected with the open-access problematic. (Alchian & Demsetz, 

1973:19) van den Brink argues that this reasoning has nothing to do with communal ownership, but instead describes a state with lack 

of ownership. He recognises this confusion and instead prefers to call this phenomenon “The tragedy of open access”. 

28

State ownership 

State ownership, normally including public ownership, is characterised by providing 

services for the good of the citizens. To a large extent, publicly owned areas are 

equivalent with free entry for anyone, whereas entrance into publicly owned 

establishments 17 normally requires paying of fees. Unlike open access, the use of public 

areas is strictly regulated. Public parks, for example, are not for picking flowers or 

cutting firewood; likewise is the use of public roads submitted to detailed driving 

regulations. Military reservations are one of the few examples of state-owned areas 

leaving almost no rights for the fellow citizen. (Alchian & Demsetz, 1973:19) 

The ideologically charged issue of the ultimate owner of land, has over the years opened 

up for several more or less coercive land reforms. Demsetz demarcates an interesting 

limitation when he states, “State ownership implies that the state may exclude anyone 

from the use of a right as long as the state follows accepted political procedures for 

determining who may not use state-owned property.“ (Demsetz, 1967:354) The definition 

of the peculiar phrase “accepted political procedures” has truly varied from time to time. 

The colonial governors, for example, interpreted it one way, and the one-party socialist 

regime in Tanzania interpreted it another. 

The issue of public interest 

Representing the state in relation to the citizens is a rather delicate task. Many are the 

examples of abuse from politicians bent on profiting from the inherently unequal power 

relation. Multiple cases, being scrutinised by the Tanzanian land commission, testifies of 

an obvious lack of equity and integrity from representatives of the state. Another 

universally known complication arises when the state simultaneously holds two 

incompatible positions. On the one hand, the state represents one of the parties involved 

in a legal case, possibly as landlord, and on the other, it claims to represent the interest 

and welfare of the majority. The power relations are destined to become biased, which 

opens up for corrupt practises and unjust decisions. (Commission report, 1994:115f) In 

order to find legitimacy for encroachments concerning land, the state often claims to act 

on behalf of the entire population by stating to act in public interest, or the interest of the 

nation. In traditional democracies, property rights are secured in the constitution, which 

also contains rules, limits and the right to fair compensation for encroachments that may 

arise. An often noticed weakness in Tanzania, as well as in many other young 

democracies, is the lack of criterion constituting the legal definition of public interest. 

This constitutional weakness has enabled the state to interpret this powerful tool very 

widely, serving unfair, dubious or even corrupt purposes. There is neither in the 

constitution, nor the Tanzanian land legislation any definition of the term public interest. 

Only a vague writing is available in the Land Acquisition Act of 1967. (Wily, 2003:11) 

17 Publicly owned establishments such as: swimming halls, museums, trains and metros et cetera. 

29

3.2 Comparison of rights 

We have seen that ownership can be identified as socially recognised rights attached to a 

specific piece of land. Seen from a higher perspective, the very reason for a clearly 

defined land tenure system is to elucidate the rights, limitations and obligations 

connected to the holding of land. If these rights were well defined and effectively policed, 

land security would be strong, whereas mismanagement and land disputes would cease to 

cause problems. 

The objective of this part of the study is to analyse the bundle of rights connected to each 

of the two apparently opposing systems of land tenure, the freehold system and the right 

of occupancy system. 

A 

B 

C 

A, B and C represents land-tenure 

systems of three different societies. 

Components of land rights 

common for both A and B. 

Component of land right 

common for both B and C. 

Components of land rights 

shared by all three tenure systems. 

Figure 3.2 

The figure illustrates how the bundles of rights connected to different land tenure systems overlap each 

other. Although the land tenure systems in societies B and C resembles one another by their outward form, 

when it comes to factual land rights they may have less in common than with the apparently different land 

tenure system A. 

The fact that there exist radically different land tenure systems, underlines that there is no 

universal, technical definition of ownership to land. (van den Brink, 2003:2) Existing 

tenure systems may, hastily examined, appear to have almost nothing in common, but 

deviates by closer examination only in the amount and type of rights that are given to 

holders of land. Within each tenure-system there is normally more than one type of landholding, 

which enables the rights to somehow overlap between different systems. 

(See figure 3.2) 

The bundle of rights attached to a specific type of land-holding, determines within which 

limits the land-holder must keep. On the one hand, it restricts him in claiming property 

rights in relation to neighbours and the society, but on the other hand, it enables him to 

fully occupy, and execute dominion within the prescribed area of the stated property 

rights. 

30

Elements of ownership rights 

According to Pejovich, the four following elements were used by the ancient Roman Law 

to describe different forms and levels of authorities over ownership rights: 

i) the right to use the asset (usus) 

ii) the right to capture benefits from the asset (usus fructus) 

iii) the right to change its form and substance (abuses) 

iv) the right to transfer all, or some of the rights specified 

under i-iii to others, at a mutually agreed upon price. 

For far-reaching individual ownership, the last two elements are fundamental. They are 

securing the owners right to bear changes in the value of his property. (Pejovich, 

1990:27f) Conflicts over the use of scarce resources are here prevented by enforcing 

distinct boundaries, creating an inside, where the owner has been given extensive rights 

to decide, and an outside, where these rights are in the hands of other people. Adjacent to 

this reasoning comes that management of land sometimes have effect outside the 

property, causing a phenomenon called external effects. 

Communal ownership 

Within communal ownership the beneficiary is a collective group sharing the rights to a 

certain area of land among themselves. This type of ownership is frequent in large parts 

of rural Africa. It was also common in Europe, at least until land reforms scattered the 

villages, or the industrialisation strongly depopulated the countryside. 

Obvious rights connected to members of commons: 

1) The right to enter and pass through an area 

2) The right to make use of what naturally grows or can be found on the ground 

Communally held rights that also may be allotted to individuals: 

3) The right to till the land and profit from its yield 

4) The right to build on the property 

5) The right to expel non-members from the property 

Figure 3.3 Features of communally held rights 

Examples of communally owned rural areas are, in an African context, unoccupied 

village land kept in common for the purpose of grazing. Normally, this is land that for 

some reason is not suitable for agriculture. It might be too stony, too dry, too wet, or too 

far away. Other communally held areas could be village forest reserves, supplying the 

villagers with firewood and construction materials. Communal ownership may also 

concern technical devices that benefits from co-operation, such as irrigation schemes 

including ditches, pipes, wells and ponds. 

Individual ownership 

In western societies, individual ownership has during the last two centuries constituted 

the largest of the three categories. Also here, the national variety has been wide. 

31

Where to be found Type of rights for the rightsholder 

(Designation according to Roman law) 

1) The right to enter and pass through the property 

(The right of trespassing) 

Characteristic elements of 

both communal ownership 

and individual ownership 

--------------------------------- 


individual ownership, 

Present in a communal 

manner within communal 

ownership 

--------------------------------- 


individual ownership, but 

unusual within communal 

ownership 

--------------------------------- 

Equally possible rights 

within individual as well as 

communal ownership 

(although uncommon) 

2) The right to make use of what naturally grows 

(Usus) 

----------------------------------------------------------------- 

3) The right to till the land and profit from its yield 

(Usus fructus) 

4) The right to build on the property (Abusus) 

5) The right to expel outsiders from the property 

6) The right to fence in the property 

7) The right to let the property be inherited 

(The right to transfer all rights to others) 

----------------------------------------------------------------- 

8) The right to mortgage the property 

(The right to transfer some of the rights to others) 

9) The right to lease out whole/parts of the property 

(The right to transfer some of the rights to others) 

10) The right to sell the property 

(The right to transfer all rights to others) 

----------------------------------------------------------------- 

11) The right to make full use of minerals in the 

ground (Abusus) 

Relative strength 

Weaker rights 

Stronger rights 

Figure 3.4 

The figure systematises the most common land-related rights in order of relative strength. The order in 

which the rights follow may vary in different cultures, but the stronger rights normally include subordinate 

rights, or parts thereof. 

State ownership 

Examples of state-owned rural areas could be public roads, national parks, and national 

forest and game reserves. The state keeps these areas for the protection of public 

interests. Due to the otherwise immense transaction costs, it is a worldwide accepted 

principle that the state provides means for the need of transportation through public 

roads, railroads, ports and airports. Hence, a certain amount of state-owned land is to be 

found in societies with leasehold tenure as well as in societies having freehold tenure. 

Access to state-owned property is normally open for everyone on a first-come, first-serve 

basis. Although the impression of availability is large on state owned property, only the 

two first rights in the table are applicable for common users. On public railroads, ports 

32

and airports, availability is connected with the use of a charged-for service. 

National parks and similar areas might have a discriminative approach to visitors. Native 

citizens might be allowed to enter for free, based on traditional rights, whereas foreigners 

often have to pay entrance fees. 

3.2.1 The Freehold System 

Although similar in its fundamental rights, the freehold system of each society has its 

own detailed bundle of rights. One of the differing factors is, to which extent the state 

may enjoy exclusive rights to decide on the use of natural resources. There might also 

within a country appear classes of freehold properties that are restricted in its rights 

depending on certain considerations. In Sweden, for example, public access to the shore 

is considered a national interest, and is therefore a legally protected right. This means that 

further privatisation through the erecting of new buildings closer to the seashore than 100 

metres needs to be sanctioned by the authorities. 

The true meaning of freehold is to demarcate a specified unit of land to constitute a parcel 

of its own. It is legally treated as an individual unit, and might differ both in ownership 

and bundle of rights from the surrounding parcels. Freeholds are created to be owned and 

managed on individual basis, and without limit in time. 18 This means that the owner have 

extensive rights to decide how to manage the property, as well as to exclude outsiders 

from the area. Once the ownership is secured, the owner has the right to continuously 

keep the property, to be succeeded by coming generations through inheritance. 

Limitations in the property rights 

The owner has the right to decide upon the use, or misuse, of her property. Whether to 

build something on it, cultivate it, or leave it to be overgrown, is a matter of her own 

choice. There are, though, normally public regulations to be followed. As misuse of land 

and water tends to cause negative external effects, there are normally environmental laws 

curtailing the acceptable freedom of choice in how to use the land. Additionally, there 

might be restrictions on how and what to build, requiring the owner to submit to zoning 

laws and apply for building permits. In some cases, the owner is prescribed to allow the 

public access for hiking or fishing on the property. (van den Brink, 2003:3) 


The freehold system is perfectly adjusted to the principle of trade on a free market. In 

theory, it is not the piece of land itself that is traded, but the rights attached to it. 

Nevertheless, these rights are tradable, and esteem a certain value related to the demand 

for land, the alternative land use and the individual prospective buyers’ willingness to 

pay. The land value is also affected by official regulations circumscribing the rights, and 

the actual policing of these regulations. Factors like these are weighed by the market, 

finding an equilibrium that describes the market value at each moment. 

18 Recognising also organisations as individuals. 

33

Fees and taxes 

Since freehold systems are common in societies with an established financial 

infrastructure, and the important land security is built and maintained through the keeping 

of accurate and reliable registers, the fee for entry into the land register is rather 

significant. On top of this registering fee, the paying of an annual tax normally belongs to 

the duties of landowners. The amount of this land tax is politically sensitive and varies 

considerably between countries. 

Security of tenure 

One of the fundamental ideas with freehold tenure, is that the security of ownership must 

be guaranteed. This is so, while owning property is highly esteemed and considered a 

fundamental right in countries applying to the freehold system. Security of ownership is 

very close connected to financial credibility, as very large sums of borrowed money are 

secured in property. But, in order to use land as collateral, reliable evidence to proof the 

identity of the correct land-holder has to be shown. Hence, reliable registers are of 

fundamental importance. 

As the possessive rights connected to freehold tenure are very strong, it is only in 

exceptional cases legally possible to evict the holder of a freehold land title from his 

property. Such situations may occur when projects of national interest show up with a 

competing land use on the same area. In order not to inhibit the development of the 

society, individually owned land may be expropriated against the owners will. In such 

cases, the owner has constitutional rights to be duly compensated for his loss of property. 

3.2.2 The Right of Occupancy System 

Since the independence in 1961, all land in Tanzania is formally owned by the people as 

a collective group. The president then, is responsible for the management and allocation 

of usufruct rights in the land. This means that individuals, groups of individuals, 

companies and organisations are granted the right to use a piece of land for a certain 

period of time. 

In the new land legislation, a right of occupancy title is the only available tenure form. 

The land acts distinguish between two types of right of occupancy, the Customary Right 

of Occupancy, being applied only within village land, and the Granted Right of 

Occupancy, which is to be used outside village land. 

Limitation in time 

The most striking difference from a freehold is, that the right of occupancy is limited in 

time. Depending on land use, the time limits are 33 years, 66 years, with a maximum of 

99 years. (LA 1999:32) Excepted from this time limitation is the customary right of 

occupancy, which is limitless. 

Restriction in use 

A right of occupancy is allotted for a specific land use purpose. 19 The holder is required 

to stick to the land use for which the certificate is issued. (LA 1999:35) In the rural 

setting it is also required of the holder of a customary title to cultivate, or in other ways 

19 Common land use purposes are: industrial, residential or agricultural purpose. 

34

make use of the land in order to keep it. Although the customary title is issued without 

limitation in time, this restriction is meant to avoid people from trying to grab land for 

speculative purposes. Other restrictions concerning land use, building permits and 

allowances in urban areas are similar to the corresponding limitations under a freehold 

tenure. 


Before the passing of the new land legislation in 1999, land in itself was formally not 

considered to have any saleable value. In theory, bare land was not allowed to be sold, 

only given away for free. The existence of a land market was suppressed, although it 

existed informally as a result of increasing land scarcity in some areas. (Interview, 

Kironde) As explained in chapter 2.2 and 2.4, the absence of land value have historical as 

well as ideological roots. Historically, land has been an abundant resource in Africa, 

whereas there have been scarcity of labour force. Abundance of land and shifting 

cultivation has implied that ownership has never been any relevant issue. It was far easier 

and more efficient to just move to next plot when the field started to show signs of 

malnutrition. What really mattered was the right to the fruits of the labour. (van den 

Brink, 2003:5f) The valuable property was the harvest, rather than in the land itself. This 

approach partly explains the total misunderstanding between the first settlers, bargaining 

to buy land, and the tribal chiefs, considering land being a gift from God, not able to be 

possessed. Also many modern land conflicts originate in the different views on 

ownership. For example claim villagers whom trespass and cultivate the unused 

periphery areas of huge alienated estates, their customary right to use the land 

temporarily, and do not see the problem with doing so. (Commission report, 1994:62) 

Type of rights Freehold Right of Occupancy 

1) Enter and pass through Always Always 

2) Make use of what naturally grows 

or can be found on the ground 

Normally, if not within 

protected areas 

Normally, if not protected 

areas 

3) Till the land, profit from its yield Always Depending on purpose 

4) Right to build Yes (Permit required) Sometimes (Permit required) 

5) Expel outsiders Normally (x) Normally 

6) Fence in Normally Normally 

7) Let the property be inherited Always Yes (considering time frame) 

8) Mortgage the property Always Yes 

9) Sub-lease Always Yes 

10) Sell the property Yes Yes (considering time frame) 

11) Make full use of minerals Possible (country specific) Possible (country specific) 

x) The freedom of roaming encroaches in some countries on the right to expel outsiders also from privately owned property. 

Figure 3.5 

The figure aims to compare the two different tenure forms by putting them side by side to study how they 

relate to the discussed types of rights. 

35

Fees and taxes 

The issuing of a certificate of a customary right of occupancy in the villages requires an 

initial small fee to cover the administrative costs. Thereafter, the payment of a yearly land 

rent to the village is required of those that have acquired a certificate. Acquiring formal 

certificates is voluntary. Without a certificate it is not possible to mortgage the land, but 

land-holders without certificates will, on the other hand, not be required to pay any land 

rent. (Interview, Sichone) 

Dispositions 

What normally distinguish leaseholds from freeholds, are the weaker rights concerning 

sub-lease, sale or inheritance of the property. A property held under leasehold tenure is 

normally not possible to mortgage. The land acts are in this matter introducing an 

empowered type of leasehold, providing for such rights within the right of occupancy 

system. 

Security of tenure 

The new land legislation claims to guarantee the same land security to customary landholders, 

regardless whether they have chosen to register their rights to land, or not. The 

acts provide for legal right to compensation for encroachments on anyone’s land rights. 

But, still there exist some debated ambiguous statements under the issue of land security 

in the land acts. (See chapter 7.2) 

Summary 

The Tanzanian right of occupancy is still built on a usufruct-type of land holding, but its 

content has through the new land legislation come to considerably approach the freehold. 

From having previously been limited to mainly customary practises of land holding, the 

land acts promises increased security of tenure, increased possibilities for dispositions 

including inheritance, sub-leasing, selling and mortgaging the property. 20 

20 As the granted right of occupancy is limited in time, it is not yet fully clear how to handle and assess the value of dispositional 

rights, when approaching expiration of the rights of occupancy. (Interview, Kironde) 

36

4. Land-political challenges 

“Given the crucial importance of land to the economies of East Africa, it is obvious that 

ownership, access and use of land is one of the key factors in economic policy 

formulation -and in poverty alleviation.“ (Palmer, 1997) 

Introduction 

In the present era of globalisation and liberalisation, the different African systems of 

customary land tenure are more than ever put under pressure. In an article from 1998, 

Robin Palmer 21 pertinently catches some of the main tribulations concerning land tenure 

in Africa, “Access to land by the poor in many parts of Africa is currently seriously 

threatened by a combination of privatisation and unrestricted market forces; by 

governments desperately seeking foreign investment... and by greed and corruption by 

the rich and powerful.“ 

Although the market-oriented system of private land ownership appears favourable in 

many ways, it is questionable whether its potentials are applicable in rural Africa. 

Acknowledging the fact that a large majority of the rural population have a very low 

income, and that access to land therefore plays a crucial role in the social security system 

(Palmer, 1997), essential parts of the market-oriented system turns out totally different in 

the African setting than in western societies. 

The intention of this chapter is to outline some of the more debated issues related to land 

in Africa, and which roots are to be found in the deviating views on land. It will be shown 

that cultural differences, as well as discrepancies in the institutional structure of the 

society, are of critical importance. We will also briefly feature the World Bank as it is 

globally the single most influential actor in development politics. The Bank’s recent shift 

of approach is acknowledged, from having previously focussed on individual titling 

alone, to having become increasingly willing to find more diversified and contextually 

adapted solutions. 

The importance of access to land 

The importance of the agricultural sector as employer and provider of livelihood in 

western societies has diminished throughout the twentieth century, to become the 

marginal actor in the national economy it is today. In spite of this development, farming 

itself has gone through an industrialisation during the last fifty years that has enabled a 

significant increase in production. Consequently, access to fertile land for individuals in 

these societies, is neither a question of survival nor of social welfare. Besides this, the 

domestic demand for food is thanks to the weak population growth, only increasing 

slowly. The current African situation is generally the opposite. Firstly, the majority of the 

population in most African countries is still living in the countryside, earning its 

livelihood from husbandry. 22 

21 Robin Palmer was at that time Land Policy Adviser at Oxfam GB 

22 Tanzania, being one of the least urbanised African countries, had in the 1988 census a rural population of 88 percent. (Fitzpatrick, 

2002:26) 

37

Secondly, the cultivation techniques used by the small-holders are remarkably simple and 

lowly mechanised. It is not lack of knowledge in using irrigation, fertilisers or highproducing 

planting seed that is the problem, but the lack of resources and organisation to 

get hold of and benefit from it. (Interview, Mbuzi) When it comes to initiatives for 

change, tradition and social pressure also seem to play a hampering role. It takes a lot of 

courage to dare to do things differently than the inherited tradition and the way all the 

neighbours hold to be right. Consequently, the family farm continues to be the primary 

occupation in rural Africa, demanding huge amount of labour. This apparent 

ineffectiveness is one side of the coin; the other side is that the simple methods actually 

provide both employment and affordable food for the millions of people living in the 

African countryside. 

A third difference is the weak trade and industry sector, which is not as widely spread in 

Africa as in for example western or Asian societies. In the countryside, jobs are rarely 

found outside of the agricultural sector. (Commission report, 1994:119), (Palmer, 2004) 

The possibility to learn skills beside traditional farming or handicraft is reduced, which 

makes the possibility to change occupation, and find alternative jobs, rather unlikely. 

Fourthly, the steady population growth puts additional pressure on the availability of 

fertile land. The upcoming land scarcity puts limitations on the possibilities to produce 

enough food, but also on the provision of residence and occupation, whereas in western 

societies, individually owned land is mainly held for residential purposes. (Quan, 2002) 

This means that neither the general source of income, nor the social security system is 

dependent on access to land. Another striking difference is that the general financial 

situation has been more stable and reliable in western societies. (Palmer, 2004) 

Food production and employment 

Finding ways to increase the national food production, aiming at eventually becoming 

self-supporting, has for decades been an unreachable goal for most African nations. But, 

despite an increasing population, single nations have managed to reach the goals. Among 

these nations, properly run large-scale commercial farms have shown to be the most 

successful way to produce large quantities of food (Nevin, 2004:28f), and, not least 

important, to establish and succeed with an efficient chain of transport and distribution of 

the farm produce. For different reasons, it has shown to be privately owned farms, instead 

of state owned or communally run farms that in the long run have accomplished the best 

result. (Shaw, 2003:77f) It seems like they have managed the best to gather the financial 

strength to invest in machinery, and to continuously improve and expand the farm. The 

structure of private ownership has also created an incentive to properly manage and well 

look after the capital assets. Although this efficient management is often the case, it is not 

an evident result of privately held estates. The land commission refers to complaints 

against several private estates holding abundant tracts of land in the midst of areas of land 

scarcity. These are private estates where the vast areas of land are being cultivated only to 

a small extent. (Commission report, 1994:62) 

Facilitating the establishment of large-scale commercial farms, for example through the 

introduction of a market oriented land-ownership system, would affect the rural 

development in two ways. On the one hand, large portions of fertile land would be shifted 

from extensively run subsistence farming with minimal inputs, to large-scale intensive 

38

farming with enough resources to increase the output many times. On the other hand, 

land being bought up and gathered in only a few hands would lead to that many smallholders 

selling their land, would also find them selling their occupation and their 

guarantee for food on the table. (Palmer, 1997) This contradiction is fundamentally about 

the different views of the core values of development, i.e. the growth aspect against the 

poverty-reduction aspect. (Mweta, 2004:5) The social implications of land holding in 

Africa are of course much more diverse than this simple example. This fact makes the 

African situation differ markedly from the western situation, and needs therefore to be 

seriously considered. 

Differing prerequisites 

In the western society financial systems connected to a land market have developed 

throughout centuries and have, thus, gained stability both as recognised systems and 

concerning the required legal, financial and administrational infrastructure. In the daily 

selling and buying of property, information is available and openly handled; laws and 

regulations are closely followed, and the trade is taken place freely and between rather 

equal and financially stable parts. Undoubtedly, the financial system enabling mortgaging 

of land has been a critical factor in the growth of the economies of the western society. In 

order to promote the required security, this system has had to be firmly managed, strictly 

policed and guaranteed by the state through detailed and accurately held registers. 

Intending to worldwide spread the advantages of domestic land markets, the World Bank 

has, in their contacts with, and advice to developing countries, strongly advocated the 

introduction of land-tenure systems built on individualisation and titling of property. This 

has been done in spite of the fact that not only the construction of, but also the required 

close management of such systems are tremendously costly. Even if the implementation 

of such a system would be largely donor funded, experience show that the incomes from 

taxes and fees in developing countries are even insufficient to finance the continuous 

management of land-register systems 

Tremendous financial gaps 

The purchasing power in Africa is extremely unevenly distributed. Generally speaking, 

large parts of the rural population is, if not outright poor then counting their land, their 

simple house, some cooking and farming utensils and maybe a few domestic animals as 

their only possessions. The average liquidity is low. Among the urban middle class the 

purchasing power is significantly higher. Then, there is the wealthy clique of privileged 

people, often with personal contacts within influential political and financial spheres. 

With this in mind, it is easy to realise that the financial gap is immense between the rural 

population and prospective buyers of land. Even though the prospective buyers may not 

be wealthier than the urban middle class, their purchasing power is far beyond that of the 

average small holder. The immense income gaps in a society, turns the land market into 

something that increases the inequality. A purchase-price that would be an exorbitant 

sum of money for the peasant means almost nothing to the wealthy. 

39

Both in a market-oriented system, as in a customary, land is used to provide wealth and 

power. Palmer (1998) argues that “Land will always be a hugely controversial and 

contentious issue, since it is primarily about power and it involves unequal struggles 

between vested interests and the weak“. For the weak, access to land is a matter of 

survival, whereas for the wealthy it is sometimes merely a matter of investment, or even 

financial speculation. 

Land speculation and corruption 

Another difference compared to western societies, concerns the rules and regulations 

circumscribing undesirable behaviours. There is no use having detailed regulations if 

there is no power behind to enforce them. To open up for a free market, without 

allocating resources to check up on how the regulations are complied with, will pave for 

that weaknesses in the system will be exploited. This may end up in a situation where 

investors buy up land entirely for speculative purposes. To them land is nothing but a 

financial investment, a commodity from which to profit when they sell it a few years 

later. 

Due to the importance of land, some politicians and officials within the governmental 

institutions apparently practice nepotism and similar forms of corruption. Unfortunately, 

corruption has been able to flourish thanks to the lack of transparency and effective 

accountability mechanisms in the administrational systems. (Commission report, 

1994:27) As a result of this, villagers and pastoralists have been chased away from land 

they have long been occupying based on customary rights. But corruption occurs also at 

the local level. Local leaders at clan and village level have sometimes taken the 

opportunity to enrich themselves by secretly signing contracts selling off land from the 

village commons. (Commission report, 1994, pp.30, 100) 

Transparency and participation 

It needs to be emphasised that individual titling systems in western societies are based on 

long traditions of strong individual property rights, whereas in Africa, a much more 

corporate view of property rights has prevailed. Seeking to introduce an individual land 

tenure system in Africa based on the western presumptions, would inevitably come to 

face real obstacles and bear insurmountable costs, whereas the existing customary 

systems bears almost no costs at all. 

Individual titling is dependent on the keeping of accurate registers, requiring being 

continuously up-dated. In order to manage titling procedures and registers, institutions 

have to be built up, guaranteeing the same standard all over the country. A successful 

implementation of land reforms requires the acceptance and support from the rural 

population. In order to achieve this, the decision-making has to be as participatory and 

decentralised as possible. (Carney & Boyd, 1999) Experiences from Kenya show that 

governmental attempts to abolish indigenous land tenure, replacing it with statutory 

tenure, tend to fail. The customary systems have proved to be resilient, and have 

continued to be used parallel with the statutory system. The updating of the official 

registers has then become imperfect, leading to that they soon fail to reflect the factual 

reality, and have eventually turned useless. (Palmer, 2000(2)), (Commission report, 

1994:116f) 

40

Certainty and security of tenure 

Land security is essentially about recognizing legitimate evidence of the right to claim 

and make use of land. Whether it concerns the right to use a plot for housing and 

agricultural purpose, or the right to let the cattle roam over vast areas in a traditional, 

pastoral manner, these rights need to be acknowledged and legally protected. According 

to the customary practise, management of land is based on oral tradition, rather than 

written documents. This means that knowledge about land-holding principles, succession, 

borders and different sub-locative rights, is to be found exclusively in the minds of the 

elders, the traditional leadership. When confronted with the large scale investments of the 

global economy, the whole concept of customary practise becomes threatened. In order to 

avoid the course of event from the 19th century imperialistic superiority to be repeated, 

not only the vulnerable rights of pastoralists need protection, but all kinds of customary 

rights have to be legally secured, 

The influence of the World Bank and international politics 

The World Bank policy on land tenure was officially formulated through the publication 

Land Reform in 1974. Well before that, the World Bank had firmly promoted formal land 

titling at the intended expense of traditional tenure regimes. Until the middle of the 

1990s, it pushed towards a western-style modernisation, with a strong belief in technical 

solutions. These were materialised through innumerable construction projects and redistributive 

land reforms. The creation of a national credit market was seen as the 

universally prevailing objective; the model of individual ownership to land a universal 

good and a precondition for agricultural growth and modern development. Needless to 

say small-scale farming, village commons and a pastoral lifestyle were considered being 

hopelessly backward. 

The land reforms being implemented through World Bank-funded development projects 

worldwide followed the ITR-principle. This emphasised individualisation of ownership, 

followed by titling of the individualised property and finally, registration of the formal 

document of ownership. (Commission report, 1994, chapter 12) Whether in Latin 

America, in South-East Asia or in Africa, the same concept was used with very little 

respect to existing cultural differences among the countries themselves, or in relation to 

the preconditions from which the ITR-principles originates, i.e. the western society. 

Although the land titling programme in Thailand in the 1980s initially was regarded a 

success, the World Bank has since met strong critique for its keeping on to an out-dated 

development strategy. (Palmer, 2000:2) Even in the 1990s, the World Bank’s promotion 

of economic growth, solely based on free-market principles, lead to that land was treated 

as a commodity like any other (Quan, 2003) The assumption was that the market 

mechanisms automatically would allocate land to the most effective user, which would 

benefit the national productivity, as well as rural employment et cetera. But, while the 

launched reforms turned out to liberate land mainly for the wealthy, the World Bank 

failed to intervene into inherent national structural inequalities in order to protect the 

social rights and livelihood opportunities of the land-dependent peasants and the poor. 

World Bank supported titling programmes in Russia and Eastern Europe, for example, 

instead created land-grabbing opportunities for predatory elites. (Quan, 2003) 

41

Throughout the 1990s, the World Bank gradually reconsidered and reassessed its 

position. This process has led to the publication in 2003 of the Policy Research Report, 

PRR (Deininger, 2003). The new document indicates a remarkable alteration in the view 

of land issues. Although the report focuses on property rights from an economic point of 

view, emphasising the importance of secure rights to economic growth, the significance 

of social values of land rights are recognised as well. Now, collective and communal 

rights are seen as important elements of the rural society, contributing to social and 

environmental perseverance. Also, social aspects, such as the responsibility to protect the 

land rights of the poor and vulnerable, have been acknowledged. In addition, the new 

policy admits that rental markets can be seen as infinitely more useful in enabling access 

to land than are sales markets. Probably the most remarkable reconsideration is the 

statement that land rights do not necessarily have to be secured through a formal titling 

process. Instead it may sometimes be recommendable to make use of more accessible and 

affordable processes, which are based in already existing local institutions. (Quan, 2003) 

Summary 

Although Tanzania and other African nations would strongly benefit from a land-tenure 

system that enables farmers to mortgage the land they use, not one attempt to introduce a 

western-influenced land-tenure system in the continent have succeeded. Land in Africa is 

for several reasons not able to be treated like any other tradable commodity, and any 

comparison with the western society will inevitably have to recognise the immense 

difference in financial, legal and demographical prerequisites. It seems like even the 

World Bank has finally modulated its opinion, after decades of inflexible advocacy of 

individualisation and titling as the only way towards growth and development. 

42

5. The new land legislation 

5.1 Presenting the land acts 

Introduction 

This central chapter provides an orientation in the fundamentals of the new land 

legislation. A brief insight is given into the management structure of the village areas, as 

well as into the arrangements for the implementation of the Village Land Act. 

Background 

In 1977, the final, compulsory phase of resettlement under the villagisation campaigns 

was stopped. (Chaula, 2004:26) Altogether the villagisation affected more than 7500 new 

or completely restructured villages. As the reform turned out to be neither thoroughly 

planned, nor legally established, the end result was a terrible confusion in land tenure and 

land management. (Chaula, 2004:26), (Fitzpatrick, 2002:14), (Friis-Hansen, 1986:20ff) 

It did not last long until the public confidence in the legal framework was broken down 

and in the mid-80s the situation desperately called for any kind of land law reform. 

Complaints and land conflicts grew in number and the increased awareness of land value 

lead to the development of informal land markets. Also, the negative consequences of 

governmental investment promotion policies elucidated a need for increased land tenure 

security for customary land holding. (Interview, Mutakyamilwa) In 1985, Julius Nyerere 

resigned from the presidency and was succeeded by the former vice president, Ali Hassan 

Mwinyi. In 1989, the policy-making process was started, aspiring at elaborating new land 

legislation. The process included numerous policy drafts, a number of commissioned 

studies by domestic and international experts, a presidential land commission, and a 

national workshop. (Sundet, 2005) After two years of intense research and discussion on 

matters of land tenure, the land commission submitted its exhaustive report in November 

1992. This crucial document called for the formulation of a land policy as a backbone for 

the formulation of the coming legislation. Three years later, in June 1995, the National 

Land Policy was completed. (Zainab, 2004:13) The core of the policy was developed in 

accordance with the recommendations in the commission report, suggesting how to deal 

with the serious land problems and the numerous land-disputes. Having no legal force in 

land matters, the National Land Policy was only intended to form the foundation, on 

which the new land legislation was to be drafted. 

The legislation 

Together, the Land Act and the Village Land Act, form the basic new land law for the 

mainland of Tanzania. When passed in the Tanzanian parliament in 1999, the Land 

Ordinance of 1923 was repealed, and the former reliance on English law was finally 

broken. (Wily, 2003:14) The acts simultaneously repealed another ten existing laws, and 

six others were amended. (Palmer, 1999) 

On the positive, the acts clarify many of the previously grey areas in the large body of 

legislation that they replace. They also define in law many procedures which had 

previously only been set down through administrative directives. On the other hand, 

Sundet argues, the acts replicates many of the fundamental problems of the system it 

43

eplaces by continuing to give considerable scope for discretion and administrative 

directives. (Sundet, 2005) 

The structure of the land acts 

Originally, the two land laws were drafted as one whole land legislation, but got split up 

because of its bulkiness. With this in mind, it is easy to realise that the laws are closely 

related, repeatedly referring to one another. The Land Act should be seen as the chief 

legislation among the two, covering fundamental principles, such as classifications of 

land and definition of certain terms used in the acts. Furthermore, issues of mortgage as 

well as ownership between husband and wife are described only in the Land Act, 

although it is relevant for the Village Land Act as well. Other than these mutual issues, 

the Land Act covers land rights in general land, i.e. outside villages or reserved areas. 

This includes all urban areas. The Village Land Act, on the other hand, deals strictly with 

land within village areas. This includes the locally rooted systems for management and 

administration of village land, as well as land dispute settlement on village level. 

In addition to the acts, a few other laws touch the issue of village land: the Land 

Acquisition Act 1967, regulates in which way the state are allowed to acquire private 

land, including land held by villagers; the Courts (Land Dispute Settlements) Act 2002 

gives guidance on land dispute resolution; and the Forest Act 2002 enables villagers to 

declare their own village forest reserves on land within the village area. On top of these, 

the Local Government (District Authorities) Act 1982 is crucial, while it empowers 

village governments to design approved bye-laws in accordance with their position as 

land managers. 

5.1.1 Land categories 

The land acts separate land in three categories; general land, village land and reserved 

land. Transfer of portions of land between these categories is possible following stated 

regulations (Land Act 1999: section 4), (Village Land Act 1999: sections 4-5). 

Additional, hazardous land is described (LA 1999: s.7), (VLA 1999: s.6) as portions of 

land within the three categories, being protected mainly for environmental reasons, or to 

protect people from danger. The law exemplifies hazardous land by mentioning 

mangrove swamps and coral reefs, wetlands and offshore islands, as well as land on steep 

slopes or river banks, which are likely to be exposed to erosion if not protected. 

General Land 

By definition, general land is described as consisting of all land which is neither village 

land nor reserved land. (LA 1999: s.2) All urban areas fall under this section, except areas 

that are covered by laws constituting reserved land (See below), or that are considered 

hazard land. General land is governed by the Land Act and, hence, under the control and 

jurisdiction of the commissioner for lands. This ministerial key person has delegated 

much of the powers to the district councils and district land officers in the 141 districts. 

The definition of general land in the Land Act is supplemented by the somewhat obscure 

statement, “General land… includes unoccupied village land.” 

The passage is debatable in itself, as is also the fact that it is left out in the corresponding 

definition in the Village Land Act. (Shivji, 1999(1)), (Wily, 2003:10) It unveils one of the 

ambiguities for which the acts have received much critique. (Sundet, 2005) 

44

Village Land 

Village land is declared as being the land falling under the jurisdiction and management 

of a registered village. As Tanzania consists of a vast countryside with only a few urban 

areas, most land in the country is village land. In order to fulfil the provisions of the acts, 

the village first has to acquire a certificate of village land. The certification procedure 

includes compulsory agreement upon the perimeter borders among neighbouring villages. 

When unambiguity is reached and the border is properly demarcated, a formal certificate 

of village land is issued in the name of the president, and registered in the National 

Register of Village Land. (VLA 1999: s.7), (Wily, 2003:25ff) 

Each village is required to define three land-use categories within its own borders: 

1) communal village land, 2) individual and family land, 3) reserved land. 

(VLA 1999: s.12) Reserved land in this context is to be understood as land set aside for 

future individual or communal use, and needs to be distinguished from the national land 

category, ”reserved land”, mentioned above. (Wily, 2003:28) 

Reserved Land 

Finally, reserved land is declared as land being reserved and governed for purposes 

subject to nine listed laws. (LA 1999: s.6) Here, environmental protection areas, such as 

national parks, forest reserves and wildlife reserves, including marine parks are gathered, 

but also areas intended and set aside for spatial planning and future infrastructure 

development. (Wily, 2003:23) 

Land ownership 

One of the main profits of the new legislation is the attempt to legally secure customary 

land rights. Having previously been vaguely defined as deemed rights of occupancy, 

according to the 1928 amendment of the Land Ordinance, customary land rights are now 

given equal status to granted rights of occupancy. For the first time, the Village Land Act 

provides for the possibility to acquire written and registered documentation of customary 

land rights. (Wily, 2003:22) A title in village land is called a Customary Right of 

Occupancy, whereas it in general land is called a Granted Right of Occupancy. Within 

reserved land, both customary rights and granted rights can be issued, depending on the 

character and purpose of the reservation. Rights of occupancy within Tanzania are 

primarily issued to Tanzanian citizens or groups of citizens. Organisations, associations 

or companies interested in acquiring land are required to show that the majority of the 

shareholders are Tanzanian citizens. The only legal exception from the prohibition of 

allocating land to foreign companies or associations is for purposes of investment in 

accordance with the Tanzanian Investment Act, 1977. (LA 1999: s.19) Allocation of 

village land is primarily given to residents in the village. Also non-resident persons and 

non-village organisations may apply for a land right, but will then be submitted to certain 

conditions. (VLA 1999: s.22f), (Wily, 2003:36f) 

45

5.1.2 Land titles according to the Land Act 

Granted Right of Occupancy (LA 1999: part V, VI) 

In areas outside of village land, granted rights of occupancy can be held by a single 

person, or a group of people, a company or an association. Granted rights of occupancy 

are mainly issued within urban areas, but can also be issued for general land in rural 

contexts, or within areas of reserved land. A significant difference between customary 

titles and granted titles is that the latter is always limited in time, having a maximum 

admittance of 99 years. According to the former directives, residential developments 

were allowed terms of 33 years, whereas commercial property and farms were allowed 66 

years, and finally, 99 years were intended mainly for agricultural purposes. (Ndjovu, 

2003:71) 

5.1.3 Land titles according to the Village Land Act 

Customary Right of Occupancy (VLA, s.18f, s.23) 

Customary rights of occupancy arise when villagers are allotted, or in other ways get hold 

of land in accordance with the customary law 23 applicable in the area. Full customary 

rights exist equally, regardless whether written certificates are being issued, or not. (Wily, 

2003:22) In order to formally register someone’s interest in land, the land has to be 

adjudicated. This means to thoroughly investigate and confirm the tenancy of the plot, as 

belonging to the claimant. The law does not require the borders to be surveyed, measured 

or mapped; instead a written description, or a simple sketch explaining the area with the 

help of natural existing items, is enough to provide legal validity. (Wily, 2003:26) 

Customary rights of occupancy are, contrary to granted rights of occupancy, without limit 

in time. 

The legislation grants land security and legal recognition of tenancy to every land-holder 

regardless of formal certification. (LA 1999: s.4(3)) It is, though, only through the 

holding of a registered Certificate of Customary Right of Occupancy, that the landholder 

can make factual use of all the extended potentials that the new legislation seeks to 

provide. 

5.1.4 Land management 

Decentralisation of decision making is an essential issue for the new legislation. This is 

so for reasons of efficiency, as well as to empower rural communities to manage their 

own affairs. 

Empowered villages 

In the earlier legislation, the village councils were recognized as owners of all land 

belonging to the village. During the post-villagisation period, the government confusingly 

started to issue 99-year termed Village Title Deeds to the villages. By that means, the 

village councils were authorised to sub-lease land to village members. Additionally, they 

had the power to allocate and alienate land without public control, which was sometimes 

23 Customary law means any rule, custom, tradition and practice that is established by usage and accepted as having the force of law 

by the community. Such customary laws are fully recognised by the Village Land Act as long as their practices do not conflict with 

the National Land Policy, 1995, or in any other respect works discriminative. (See chapter 2:2) 

46

greatly abused. (Wily, 2003:23) Today the ownership is withdrawn the village as a 

corporate body, and returned to the central government. Instead of acting as trustees on 

behalf of the village members, the village councils are now being fully accountable 

before the village assembly, as managers of the village land. (VLA 1999: s.8(12)), (Wily, 

2003:23) There exist, though, different opinions whether the villages actually have the 

real power to autonomously manage their land. Instead of being vested in the village 

assembly, the radical title is namely formally vested in the president, being delegated to 

the commissioner for lands. (Shivji, 1999(1)) This ministerial key-person has the powers 

to decide upon, revoke or intervene into land matters. Some of these rights may also be 

delegated to the land officers at district level. (Wily, 2003:34) 

Village land administration 

Administration of general land is monitored by the commissioner for lands and his 

subordinates at district level, whereas for village land, the village council has been 

authorised to manage and administer land issues. (VLA 1999: s.8) Its role is to set up a 

system of land administration, which shall be as efficient, transparent and participatory as 

possible. (VLA 1999: s.3(1 i )) This setting is meant to promote local involvement from 

the villagers, and enable adaptation to the local customary laws. (VLA 1999: s.20(2)) 

Being entrusted village land manager, the village council is required to establish a proper 

village land register, in which to keep record of all land being certified in the village. 

(VLA 1999: s.21) In reality, the registration is done by the village executive officer 

(VEO), a clerk previously appointed by the village council to deal with overall 

administrational tasks for the village. Nowadays, the VEO has got extended 

responsibilities. In his part-time function as village land officer and village registrar, the 

VEO is performing duties at the request of the government, handling the village land 

register. (VLA 1999: s.21) The VEO is as such, being paid by the government, and is 

required to have a certain administrative training. (Wily, 2003:29) 

In order to investigate boundaries and ownership of land, the village assembly is to elect 

an adjudication committee, which is headed by an adjudication officer operating as its 

secretary. A suitable person for this function is preferably appointed among the most 

respected persons in the village. Secondly, a village land council is to be established as a 

kind of informal land dispute tribunal, to help villagers resolve their land disputes on the 

village level. The village land counsil has no formal legal power, other than the power of 

persuasion and negotiation. (VLA 1999: s.60) If the council fails to find acceptable 

solutions the parts will have to turn to a court of law. Finally, in order to ease the burden 

of the village council, a village land committee may be put together. Contrary to the other 

institutions, the village land committee is optional, and can only be given advisory 

powers on land issues in the village. 

Management of village land 

Village land shall be managed in accordance with customary law, and contribute to a 

sustainable development in land-use, natural resources and the environment. (VLA 1999: 

s.8(3)), (Wily, 2003:25ff) Managing village land includes making easily understood land 

rules and regulations concerning local land management. (VLA 1999: s.3(1)) The law 

also advices the village council to prepare management plans for each tract of communal 

village land. Supported by district land officers and district wildlife officers, the Forest 

47

Act, 2002, and the new regulations under the Wildlife Conservation Act, 1974, can help 

guiding villages in establishing Village Forest Reserves or Wildlife Management Areas 

within its village land. (Wily, 2003:28) 

Land use requirements 

The new land legislation brings no change in the way holding of land rights are 

conditional upon the factual occupation, and use, of the land. (VLA 1999: s.29) Land that 

is not occupied or used for at least five years shall be considered abandoned land, and 

may be reallocated by the village council. (VLA 1999: s.45) Before enforcing such 

measures, factors like customary practices, a long period of draught, and dependency of 

the land by spouses or children shall be considered. (VLA 1999: s.35f) 

District level involvement 

The district council is, on behalf of the commissioner for lands, first of all managing 

general land in the district. In respect of village land, the role of the district authorities is 

merely monitory, assisting and guiding the villages with expert know-how and advisory 

functions. The principle of local autonomy allows the village councils to refuse the advise 

given by the district level. (VLA 1999: s.9(1)) The district land officer is responsible for 

the implementation process in the district and is involved in the issuing of certificates and 

that registers are being built up. His major influence in land matters is being exercised 

through the necessary procedure of signing and sealing offers and certificates, and the 

keeping of registers for certificates of village land, as well as a district copy of each 

customary right of occupancy issued in the district. 

Being politically elected, the district council is the authority to which villagers can turn to 

complain when they are dissatisfied with decisions made by their own village council. 

(Wily, 2003:33) Finally, the district may be delegated to decide upon the maximum 

amount of land a single person may hold in an area. This, in order to encourage equal 

access and distribution of land, taking into consideration local key factors such as: 

population density, relative scarcity of land, and land degradation in the area. (VLA 

1999: s.3(1)), (Regulation 75) 

5.2 The process of implementation 

Already in 1998, an initial English version of the land bill was presented. After being 

further elaborated, discussed and amended, the two acts were finally passed in the 

Tanzanian national assembly in February 11, 1999. Waiting for the translation into 

Kiswahili, the acts did not come into force until May 1, 2001, when being gazetted along 

with numerous supplementary regulations. (Palmer, 1999), (Wily, 2003:1) 

It is obvious that the launching of such a formidable piece of legislation has to be given 

quite some time, and demand considerable resources, in order to be properly 

implemented. According to Liz Wily 24 at DFID, “Provision is made for the Land Acts to 

be under constant review, and that amendments are routinely anticipated“. (Palmer, 

1999) This implies that the comprehensiveness of the legislation is still to be improved. 

24 Ms Liz Alden Wily is an independent land tenure and natural resources management adviser. She has been engaged in the 

Tanzanian Ministry of Lands, the British DFID, and IIED. 

48

Also the Ministry of Lands acknowledges this fact by stating, “The enactment of the new 

land laws marks the start (not the end) of a long process of land tenure reform, which 

will take place for several decades to come“. (Palmer, 1999) 

Key achievements 

The land acts, including their respective regulations have been printed and distributed in 

all 21 regions, and continues to be distributed to a growing number of districts and 

villages, as the implementation proceeds. Additionally, the preparation of the (more than 

50) prescribed forms have been finished. Likewise, a legislation ushering in a more 

transparent system of land dispute resolution, as well as the passing of amendments 

enabling the mortgaging of land has been brought about. 

In 2002, a training manual for the Village Land Act was completed together with a 

citizen's guide for implementation of the Village Land Act, and guidelines for 

participatory village land use planning. (Symposium 2005, opening address, Sijaona) Still 

there is an outspoken need to explain, encourage and inspire villagers to realise the 

advantages of the new legislation. In order to reach illiterate people groups, there are 

visions of using various media, e.g. radio, TV, films and dramas et cetera. (Symposium 

2005, paper 4, Kipobota & Mafoe) In early 2004, a ministerial implementation task force 

was put together, with a mandate to evaluate requirements and to monitor implementation 

in pilot districts. (Symposium, 2005, paper 1, Msangi,) 

The need for implementation 

The acts are since May 2001 the operating land law of Tanzania, which means that 

knowledge in how to handle the legislation has to be spread all over the country as 

rapidly as possible. 

As the Village Land Act brings about rather thorough implications for the villages, the 

legislation has not only to be spread, but also to be taught and properly understood. 

Among the practical advantages of the new legislation are, that the administration of land 

tenure management are built on existing institutions. 25 All villages have already 

functioning village councils and most of them also have a village executive officer 

(VEO) running the daily administrative work. Through the keeping of a formal village 

land register the Village Land Act extends the tasks of the VEOs, both quantitatively and 

regarding administrative accuracy. 

Village administration 

Being turned into a government employee, the VEO has been given more responsibility. 

According to the Village Land Act, the VEO is required to have studied administrative 

courses during at least two years. This has lead to a shortage of VEOs qualified to 

perform the duties of their roles as village land officers. The commissioner has therefore 

appointed land officers in 71 villages, some of them being responsible also for 

neighbouring villages. (Symposium, 2005, paper 1, Msangi) Additionally, land 

adjudication committees for land dispute resolution, and land allocation committees, 

advising the village council in land matters, have been appointed. 

25 The Tanzanian land reform differs in this matter from the land reform of some of the neighbouring African nations, where the costly 

administration structure has to be built from the start. (Palmer 2000(1)) 

49

Financial challenges 

Nevertheless, while all 11,000 village areas have to be informed, the implementation 

programme is likely to require large efforts. In order to economise with the limited 

financial resources, as well as the limited staff available, the implementation strategy has 

been to appoint seven regions to become pilot regions. In each of these regions, a singular 

district has been chosen to be built up, with support from the state, to become a model 

from which the other districts and regions can learn and imitate. Initially, this has meant 

the construction of a proper district land registry; the restoration of the village offices in 

the pilot villages to meet the required standard for housing the land register. Furthermore, 

the formal process of issuing of certificates of village land, as well as certificates of 

customary rights of occupancy has been initiated. So far, these achievements have taken 

place solely in the pilot areas, but land allocation committees have been elected 

nationwide and village land councils, dealing with land disputes, have been appointed in 

most villages. 

Summary 

Since 2001, the Land Act and the Village Land Act are the operating land law of 

Tanzania. The implementation process is since spring 2004 showing visible progress. 

In the pilot areas, special training is given to village leaders, enabling them to operate in 

their empowered roles as managers of village land, and to promote the process of issuing 

certificates of customary right of occupancy in their villages. The role of the village 

executive officer is being extended to include the duties of a village land officer, 

responsible for the land register in the village. Also, a number of committees are being 

put together, to guide and to mediate in problematic land issues. 

50

6. Piloting the legislation 

interviews and observations 

Introduction 

In the beginning of 2004, the Village Land Act Implementation Task Force was 

established within the Ministry of Lands. Preparatory arrangement had then already been 

done: printing the legislation and instruction booklets; designating pilot areas and helping 

constructing suitable buildings for the keeping of land registers in these areas. 

Throughout the year 2004, the provisions of the legislation slowly began to be put into 

practise. This chapter is based on field interviews made in the first pilot area, about eight 

months after the visit of the task force. The intention of the visit was to observe 

indications of forthcoming tendencies in the footsteps of the implementation process. It 

is, though, clear that any truly reliable evaluation of the new legislation ought to wait 

another few years. 

6.1 Initial pilot area, the Mbozi district, Mbeya region 

The very first pilot area to implement the Village Land Act is the Mbozi district in the 

Mbeya region 26 . In the township of Vwawa, a new district land office is constructed. This 

building also houses the new district land registry, as the new legislation is supposed to 

result in extended registration activity. 

In order to initiate the implementation process, a team from the Village Land Act 

Implementation Task Force spent four weeks, from April through May 2004, in the 

Mbozi district. Seminars were held at different levels, explaining how to implement and 

make use of the new legislation. Instructions on how to proceed with the implementation 

were shared with all district land officers, DLO, within the region, as well as with other 

concerned officials. These DLOs are in their turn supposed to promote the 

implementation process in their respective district. Having thoroughly trained the DLOs, 

the team spent some days in the pilot villages, holding seminars for the village 

leaderships, and finally for the village assemblies. At village assemblies, all adults in the 

village were gathered to be informed and inspired about the implications and advantages 

of the new legislation. (Interview, Kami) 

Education given by CSOs 

After decades of the de facto one-party regime, there is now a great need to sensitise the 

citizens all over Tanzania in understanding of democratic rights and values. The villagers 

need to learn to discern what to expect from a transparent system. In what way it is 

possible to hold elected bodies responsible for their management, and how to effectively 

deal with injustice, discrimination and signs of corruption. Domestic civil society 

organisations, CSOs, have shown to be very effective in reaching out to individuals and 

groups of ordinary citizens with training and teaching. 27 Some CSOs are successfully 

26 In the Mbozi district, the appointed pilot villages are: Halungu, Halambo, Shasya, Msia, Malolo, Ibembwa and Iganduka. 

27 A concept of sending Village Legal Workers to sensitise men and women in the villages of their land rights, was launched by the 

Swedish development consultant organisation ORGUT. The project was financially sponsored through the partly SIDA-funded Land 

51

targeting ignorant and vulnerable groups, whose rights have been strengthened through 

the Village Land Act, and who are therefore important to be reached. Such engagements 

have brought about that the Ministry of Lands has started to recognise CSOs as important 

co-actors in the implementation process. The Tanzanian CSOs are taking stand on the 

land acts when discussing democracy and human rights in the villages, as well as when 

encouraging women’s legal self-confidence. They are using the land acts because this 

piece of legislation contains essential writings covering aspects of both equality and 

equity, and is therefore of fundamental importance for the social rights of the villagers. 

Even the former Chairman of the Presidential Land Commission, the scholar Issa Shivji, 

recognises that the land acts are far from being just another piece of legislation. (Shivji, 

1999(1)) His commitment to comment and continuously bring constructive criticism all 

along the preparation of the land bill, shows that he finds them to be very important. 

6.2 Analysing the future impact of the legislation 

One of the objectives of this study was to try to make a prognosis on the expected future 

impact of the land acts. In order to gather knowledge and opinions from the academic 

sphere, interviews were made with initiated staff at the University College of Land and 

Architectural Studies, UCLAS, in Dar es Salaam. It also seemed necessary to try to 

discern how the legislation is going to be received in the villages, and how the Village 

Land Act meets the factual needs in the countryside. In order to find this out, interviews 

were made in the Mbozi district in south-western Tanzania. 

Trends in rural development 

The Tanzanian rural societies are, according to professor Kombe (interview 2004-12- 

14:2), increasingly facing a new economic reality. This development has come as a 

consequence of the recent economic liberalisation, which opened up for global financial 

interests. New demands are coming up, which the present system is not at all prepared to 

handle. The fact that the Tanzanian agriculture is dominated by small-holding farms 

makes the rural societies vulnerable. Professor Kombe sees a danger in the ignorance and 

innocence among the villagers. External actors are entering former isolated areas to an 

extent which the rural population is not capable to meet. Most village councils, he says, 

lacks the knowledge and experience to see the long-term consequences of, for example 

selling off portions of their land. It is therefore of crucial importance to train the villagers 

to handle the new reality. 

Furthermore, professor Kombe sees a danger in the migration of young, able workforce 

to the cities and urban areas. They are probably less likely to be able to earn their 

livelihood in the urban centres than on the fields. He realises that there is no other way to 

prevent youths from leaving the countryside than to create opportunities for them to stay 

in the villages. 

Management Programme (LAMP) in Simanjiro and Babati districts. The training was performed by domestic CSOs, and targeted on 

empowerment on the local level; to prepare villagers and pastoralists for their strengthened rights and the coming opportunities to 

utilise the land. But also to introduce them in the requirements of a modern legislation. One of the findings from “The Symposium on 

Implementation of the 1999 Land Acts“ was for the government to more involve, cooperate with and make use of the resources and 

opinions that the different domestic CSOs provide. 

52

Strengths and weaknesses with the right of occupancy system 

When discussing the advantages of the right of occupancy system, the opinions differ 

widely. Professor Kombe finds it to be about time to create a legal status for the 

customary land tenure, thus inserting it into the modern economy, and securing its legal 

rights. “It should have been done years ago“, he says. Professor Kironde (interview 

2004-12-17) sees the right of occupancy system merely as a relic from colonial days. 

He warns for the upcoming confusion that threatens to appear when the 33-year terms of 

the first rights of occupancy runs out within the next few years. “Today, there is no clear 

direction in how to deal with this issue“, he says. Obviously, Professor Kironde is rather 

concerned about the topic, having recently written articles to highlight its urgency. The 

question is whether the intention of the system is to revoke the ownership period after its 

expiration, or to prolong it after a renewed application. Professor Kironde also questions 

the meaning of having tenancy conditions that are not looked after and properly policed. 

Mr Simba (interview 2004-12-14:1), on the other hand, holds a positive attitude towards 

the right of occupancy system. He appreciates that the government keeps the control over 

land issues through the procedure of granting admissions before formal dispositions and 

sales. “Through government control, the accessibility to land will be kept at low costs, 

which enables also poor people to get hold of land“, he argues. Although the introduced 

customary right of occupancy title moves the whole system closer to an ownership model 

through its lack of limit in time, it is still very much influenced by the state through its 

conditions and admission requirements. 

The influence of customary law 

Both professor Kombe and professor Kironde express concern that the submission to 

customary laws, being significant for the new legislation, will turn out to be a hindrance 

to the implementation. Professor Kombe refers to the ambivalent rural situation in 

Tanzania, where traditional villages are strongly relying on customary law, whereas 

villages affected by the land-tenure reforms of the 1960s and 70s, are not at all as bound 

to such customary rules and regulations. This means that the regulations of the Village 

Land Act on the one hand is going to thoroughly influence and affect the management of 

the non-traditional Ujamaa-villages, but on the other hand, be submissive to the strong 

customary laws within traditional villages and pastoralist tribes. The division of the 

countryside into these two groups may become a reality hard to handle. 

Opportunities with the Village Land Act 

Professor Kombe especially appreciates that the Village Land Act is mandating the 

village governments to extend their management of village land. He also mentions the 

possibility for small farmers to acquire money directly, without having to rely on 

subsidiaries from the state, to be a step in a positive direction. Additionally, he sees the 

increased possibilities for large-scale production on general land to be an opportunity to 

create employment in the countryside. Mr Simba appreciates women’s equal rights to 

land, secured by the land acts, and recognises also the passage in the legislation 

concerning sustainability in the use of village land resources. He argues that these 

regulations will prevent the open-access problematic of overgrazing, as well as the 

cutting down of forests on village land in Tanzania. On this topic, the District Land 

Officer of the Mbozi district, Mr Sichone (interview 2005-01-12), explains the need for 

53

long-term commitment to the spreading of a different mentality regarding sustainable 

land-management. With a touch of humour he states that “Africans have a difficult 

relationship to trees“, and is looking forward to the day when the villagers in his district 

realise the benefits of planting and nurturing an abundance of trees in and around the 

villages. 

Challenges for the Village Land Act 

Professor Kironde points out the classic difficulty for a national policy to be made 

comprehensible at village level. Theories needs to be converted into functional practice, 

in order to affect areas of the everyday rural reality. Professor Kironde complains over 

lack of integration, meaning not only the enormous physical distance between the village 

council, being isolated out on the countryside, and the Ministry of Lands, situated 

downtown in Dar es Salaam; but moreover, the narrow-minded mentality of some 

Tanzanian officials, which thinks too much in isolated sectors. Professor Kironde 

emphasises the need to work integrative, to view the legislation in a broad perspective, 

and to tackle the implementation across the ministerial sections. 

Professor Kombe warns for a coming scenario, when land is becoming increasingly 

scarce. Due to speculative buying of land, accessibility to land for the poor will decrease. 

He means that the existing prerequisites to qualify for buying village land are all too 

easily overcome. The stipulations are hard to check, and moreover, the poverty in the 

villages will make the regulations vulnerable. Poverty drives people to accept offers to 

sell their land also at bad conditions. Quite the contrary, Mr Sichone reasons that the laid 

down regulations in the acts will turn out to be an effective tool to prevent wealthy 

investors to lay hands on large tracts of land at the expense of local peasants. Mr Simba 

also appreciates that the legislation is being equipped with control mechanisms for the 

government. 

Dealing with abuse and corruption 

Professor Kombe argues that the Village Land Act will have difficulties to curb 

infringements like speculation and corruption. Even though there are legal control 

mechanisms, speculation will be hard to check, and the policing resources checking on 

corrupt behaviour will most likely continue to be insufficient. 

Professor Kombe is also convinced that informal land markets will continue to exist 

regardless of the new legislation. Again, poverty will drive people to find ways to the 

cheat the legal control mechanisms in order to trade land informally. As long as it is 

optional to register ones land in the villages, the presence of informal land markets in 

rural areas should not be able to sabotage the formality in the land tenure system the way 

it did in Kenya. In the long run, though, the reliability of the registers may be threatened. 

Regarding corruption, Mr Sichone believes that the new policy of transparency in 

transactions will leave minimal room for corruptive action. All transactions will onwards 

have to be performed before the village council in order to be recognised as legally valid. 

The dilemma for commercial banks 

Professor Kombe and professor Kironde both express uncertainty about how the banks 

are going to encounter the upcoming possibilities to mortgage village land. They question 

whether the opportunities will be accepted, and to what extent the reformed land law will 

54

create tangible land values everywhere in the country. Professor Kombe reasons that 

factors like accessibility to infrastructure probably will be decisive when determining the 

value of rural land. It is therefore likely that rural land value will vary very much from 

area to area, he says. In the most remote areas, where land is rarely traded, only local land 

markets 28 will probably appear. Due to the weak financial security, few commercial 

banks would likely be interested in giving credits. The prospect of getting the lended 

money in return through outright sale in case of default is very small. The land 

commission draws attention to experience showing that alternative credit institutions to 

smallholders, such as co-operatives and informal credit systems within the community, 

have been “relatively more successful” than the possibility to use the land as collateral. 

(Commission report, 1994:120) 

In the productive areas, on the other hand, where land has been scarce already a long 

time, the opposite situation will likely be normative. Provided that the procedure for 

foreclosure of a loan with a right of occupancy as collateral is going to be well 

established and accepted, the commercial banks would here take low risks. Contemporary 

research indicates, though, that this procedure does not seem to work properly today. 

(Commission report, 1994:119f) The commercial banks have, since the liberalisation of 

the national credit market, called for amendments in the law, as well as in the legal 

system, in order to enable and simplify their handling of land as an asset. Their concern 

has been the difficulty to pursuit defaulters, partly due to the slow process of litigation, 

but also due to an edgeless legislation in this matter. (Kyaruzi, 2002:1) It is therefore not 

yet made clear whether the banks can actually claim, and succeed in taking over a 

customary right of occupancy in case of default. And even if the process straightens up, 

the public resistance in the countryside against such enforcements is immense. 

Managing financial opportunities 

A more hypothetical question, which gave a wide scope of answers was, for what purpose 

the villagers would probably use the money, gained from mortgaging their land. 

Professor Kironde airs a rather pessimistic view, that it would be too insecure for most 

farmers to invest in their own farm. He explains that the economic environment changes 

too rapidly for the farmers to be able to enjoy the fruits of any long-term investments. 

Either the rainfall is too unreliable, or the world-market price of the cash-crop is too 

unstable. Also Professor Kombe believes the farmers would invest in something that 

guarantees the return. Referring to statements from his father, the family farm would be a 

too insecure object to invest in, yielding a too low return. According to professor 

Kironde, past experiences have shown that most people are not good borrowers. Some 

would probably invest to get a quick return through speculation, while others would 

spend money on social needs. Mr Simba believes that the money would likely be spent on 

improvements of the housing and on education for the children. 

Many of these arguments correspond to what the research of the land commission has 

found. It claimed, well before the passing of the land acts that previously given credits 

have benefited only a small fraction of the well-to-do farmers. “Such credits are very 

often used to finance non-agricultural activities such as building and business -rather 

than invested in agriculture.“ (Commission report, 1994:120) 

28 The term “local land market” is here referring to areas where land transactions are solely taking place between sellers and buyers 

within the same village, or among the immediate surrounding villages. 

55

6.3 Interviews from the pilot area 

During a research journey 29 in the Mbozi district, several interviews were made with 

district officials as well as village chairmen. First, the District Land Officer, Mr 

Bramsiden Laimos Sichone shared his experience from the implementation process so 

far; then the former Village Chairman in Halungu, Mr Simon Mbuzi gave valuable 

information, and finally the recently elected 30 Village Chairman of Halambo village, Mr 

Stephan Mnozya, aired his ideas about the future. 

Presentation of the Mbozi district 

The Mbozi district is situated in the mountainous south-western part of Tanzania. The 

principal town, Vwawa, is hosting the district headquarter and the district land office. The 

district consists of 164 villages. On the plateau, the high altitude creates ideal climatic 

conditions for growing high-quality coffee, which is considered a highly valuable cash 

crop. Here the soil is fertile and the rainfall relatively rich and reliable. Altogether, this 

makes farming land attractive and the demand for land is already higher than the supply. 

Consequently, land value in Halambo and Halungu has, during the last five years or so, 

increased about tenfold. Land scarcity will presumably soon be one of the biggest 

problems in the area. 

In the swampy areas of the valley, rice is the characteristic subsistence crop. Here, land is 

abundant and the land value is still relatively low. Mr Sichone explains that it is not 

unusual that farmers expand their farm through buying land also outside of their own 

village. Some of them sell portions of their inherited land in valuable areas, in order to 

achieve a much larger plot in areas where land is still cheap. This behaviour occurred 

even before the passing of the acts, through entirely informal procedures of landtransactions. 

In the Mbozi district, customary laws do not seem to have much influence in 

land matters. At least, they do not conflict with the interests of the land acts. 

(Interviews, Sichone, Mbuzi, Mnozya) 

Expectations on the Village Land Act 

Since the task force’s information and training tour in the district, in mid-2004, the 

villagers are, according to Mr Sichone, yearning for the promised possibilities of the new 

legislation: ”Village councillors and chairmen are pressing to get all things in order for 

their village to go on with the issuing of individual certificates.” It seems to be the 

possibility to mortgage the land that attracts the main interest in the villages. But also the 

improvements in land-security are well received. As the issuing of a certificate requires 

clarified and acknowledged property borders, quite many land-conflicts will have to be 

dealt with in the process. Having managed this challenge nationwide, the security of 

tenure will most likely increase considerably, which is one of the objectives of the 

implementation. 

Before the issuing of individual certificates is possible, a critical requirement for a village 

is to have gained a Certificate of Village Land. Through this document, the demarcated 

village borders will be indisputable, and it is only within this area that individual 

29 The research journey was carried out during the 12 th and 13 th of January 2005 

30 Local elections in Tanzania were held in November 2004. This resulted in that some of the already trained village leaders, like Mr 

Mbuzi, had to resign from the village leadership, thus causing a loss of trained resources and knowledge in how to go about the 

implementation. 

56

certificates of customary rights of occupancy can be issued. At the time of the interview, 

36 out of 164 villages in the district had already got their village certificates attended. 

Mr Sichone imagines a situation where, ”Within four to five years time, everything will 

be in full swing”, meaning that all villages in the districts at that time will have had their 

village land certified and secured, and that certification and mortgaging of individual land 

is proceeding satisfactory. 

As a requirement for this positive view of the future development, Mr Sichone underlines 

that everything is depending on whether the government continues to fulfil its 

commitment to support the implementation. They need to both secure continuous 

financial support and develop the required institutional and legislative infrastructure. 

Lack of resources 

According to voices from The Symposium on Implementation of the 1999 Land Acts, the 

financial conditions seem to be what challenges the new legislation and the whole land 

reform the most. The permanent secretary at the Ministry of Lands admits the principal 

constraint of the whole implementation to be shortage of resources of all kinds. ”The cost 

of full implementation nationwide is staggering.” (Symposium, 2005, opening address, 

Sijaona) 

The shortage of resources also includes lack of skilled staff of different professions. As a 

result of the implementation process, there seems to be an increasing need of surveyors, 

land valuers and educated administrative staff. Each village has to be surveyed before 

achieving its certificate of village land, which is a prerequisite for the whole chain of 

implementation activities. As a part of the process of issuing individual certificates, each 

plot has to be valued by an authorised land valuer. Land valuers have up to now primarily 

been active in urban regions; but in the footsteps of the Village Land Act, Mr Sichone 

sees a nationwide demand for this profession. Additional professions experiencing 

immediate shortage of staff seem to be administrative staff trained in register keeping. Mr 

Sichone has vainly been searching a register assistant for the district land office in 

Vwawa. A person trained and able to administer the new and quickly growing district 

land register is needed, but it seems to be a difficult task to attract such skilled labour 

from the cities, where they are to be found, to remote municipalities all over the country. 

Physical resources 

Regardless if the land acts require only the simplest form of title registers, and the 

administration is built upon already existing institutions; all these achievements will fail 

to materialise as long as the required local investments are unaffordable for the villages. 

In the pilot areas, state support has been granted to finance construction of reasonable 

housing for the registers, as well as purchase of filing cabinets, records, forms and 

documents. This has led to that districts and villages adjacent to the pilot areas have 

called for external financing and central support as well. (Symposium, 2005, paper 4, 

Kipobota & Mafoe) Even though it is meant for every district to cover the costs of 

implementation within their budgets, the question of financing will continue to be central 

for the prolongation of the implementation. 

57

The new tasks of the village executive officer 

With regard to the development of administration, the duties of the village executive 

officer (VEO) now also include being the land officer in the village. As such, the VEO is 

henceforth a government employee. Thus, the qualifications of this village key person 

have been extended to include at least a two-year administrative education. As a result of 

this rapid change, quite a few existing VEOs are not qualified to simultaneously act as 

land officers. The commissioner for lands has therefore initially appointed land officers 

in 71 villages with extended authority also over neighbouring villages. (Symposium, 

2005, paper 1, Msangi) Mr Sichone sees as the primary new task of the VEO to mobilise 

the village to development; to maximise the efforts of the villagers, and to try to affect 

their ideas of efficiency. He emphasises that the result of the village is very much 

depending on the individual attitude and efficiency of the VEO himself. Successful 

villages will be found to have skilful VEOs, and non-corruptive village councils. 

Land market 

Although the pilot villages in the Mbozi district are situated on the highly productive, 

coffee-growing highland plateau, none of them are yet facing real land-scarcity problems. 

They all still have commonly held spare land for the young adults in the village to apply 

for. So far, merely local land markets exist, but, according to the view of the village 

leaderships, land holding villagers are free to sell off land also to outsiders. Dispositions 

do exist, and the price development of farmland is raging. In Halambo village, land that a 

few years ago amounted to 5-10 000 Tanzanian shillings per acre is now sold for 80- 

100 000 Tanzanian shillings per acre. (Interview, Mnozya) 

Managing financial opportunities 

There appears to be consensus among the interviewed village leaders that investments in 

land are going to be the top priority when achieving money from the loans, using land as 

collateral. There are plans of buying fertilisers and pesticides, as well as to invest in 

irrigation schemes in the villages. Mr Sichone explains that the ideas are not new. 

Investments were previously done through state co-operatives in the 1960s, but as thefts 

of commonly held fertilisers and equipment became widespread, the whole system 

eventually collapsed. Nowadays, farmers voluntarily gather in groups of 10-30 people in 

order to help one another improve their land. In Halambo village, a common investment 

fund has been built up, aiming at helping improve the common land interests of the 

farmers. 

Among the older farmers, memories of previous errors are still kept in mind. Mr Sichone 

describes some consequences of the plentiful harvests of the 1970s, when profits were 

quickly squandered through short-sighted purchase of capital goods and alcohol. It was 

also more common than today to have large costly families with many wives and children 

in abundance. Hopefully people have learnt from their former mistakes, and are prepared 

to take on a more long-sighted and responsible conduct than before, he says. In order to 

achieve this, it is crucial to share the experiences with the young generation and educate 

and train them in excellent management. 

58

Speculations for the future 

The new legislation has doubtlessly ignited prospects for the future in this particular 

region. Among successful farmers, there are expectations of an increasing wealth. They 

realise that the ideal climatic conditions and the fertile soil in their part of Tanzania hold 

unreleased potentials. But, in order to benefit from them, the farmers have to invest in 

their land, and for this, money is needed. At last, it seems like the new legislation will 

help unleash this possibility, and the response in the villages has been overwhelming. Mr 

Mbuzi in Halungu village is convinced that the financial situation will be better for those 

who are able to plan and handle money, but will grow worse for those who lack financial 

discipline or ability to plan long-term. 

Acquire a certificate 

Improved 

Money available 

financial 

through mortgaging 

output 

the land 

Money available for education, 

improved housing, illness treating, 

hospital fees etc. 

Increase 

the harvest 

Figure 6.1 

The ideal chain of conduct 

Investments and 

improvements 

in the farm 

Mr Mnozya in Halambo village believes that as the land value continues to increase, 

people will be keen on keeping their land to themselves. ”Outsiders will not find land 

here”, he says. Not the least due to population growth, there will in the near future be 

scarcity of land in the villages. As a result, the tradition of free allocation of land from the 

village land reserve to the young adults will end. Instead, they will have to migrate to 

neighbouring areas where the pressure on land is lower. A few of them will get educated 

and find jobs in urban areas; others will migrate to the towns anyway. In the distant 

Babati district, District Land Officer, Mr Mrutu asserts that the upcoming landless 

generation is an entirely new phenomenon in Tanzania, but will continue to increase in 

attractive areas. 

The expected increase in the produce of the village farms, and the subsequent growing 

wealth will also lead to improved transportation and, in the long run, the breaking of the 

village isolation. 

Agricultural development 

Even though borrowed money will enable fertilisers, pesticides and investments in 

irrigation schemes, Mr Mbuzi expects the cultivation methods to stay more or less the 

same. There will continue to be an overwhelming majority of small-holding farms with a 

large input of human labour. Professor Kironde is convinced that the Tanzanian farmer is 

59

innovative, and has through trial and error already found out the crops that are most 

suitable and best adapted for the prevailing conditions. Mr Kami, expert in land 

legislation and connected to the village land implementation task force, holds a contrary 

opinion. Instead, he argues that the average villager is resistant to change and needs to be 

supported with ideas about the choice of crops and how to improve their farming 

methods. Mr Kami is not a follower of coercive teaching; instead he nurtures a vision to 

spread successful examples and improvements through a variety of Medias. He is 

convinced that there are lots to gain through simple, and not necessarily so costly 

improvements in how the farmers are cultivating their land. (Interview, Kami) 

In the Babati district, the district land and forest office has established a permanent farmexhibition, 

where village councils and groups of farmers can be shown improved 

methods of, for example, how to abridge and prevent problems of land erosion, or how to 

more efficiently make use of limited areas of land. There, different solutions of agroforestry 

is tested, and an arboretum showing the character and local suitability of 

different sorts of hardwood is established. 

Summary 

There is huge expectation among the villagers on the future rural land development in 

Tanzania, but also a justified reluctance towards the promises of the legislation. The 

implementation will be costly and is therefore likely to become a rather lengthy process. 

On top of this, lack of skilled people might pose hindrances on the way forward. The 

implementation process is still in a premature phase, but optimistic expectations assert 

that within ten years, everything will be in full swing. 

60

7. Final discussion 

In the previous writing we have laid a foundation, upon which to discuss the Tanzanian 

land tenure system in a comparative manner. The following, concluding chapter will 

therefore deal with and discuss the strengths and weaknesses of the Village Land Act, as 

well as the likeliness for a successful implementation. 

Thus far, we have briefly surveyed the history of Tanzanian land politics, including: the 

customary view; the emergence of the right of occupancy system; and the transformation 

of Tanzanian land tenure since the national independence. In order to discern the 

disparities between tenancy and ownership when connected to land, we have been 

acquainted with the theory of property rights. Furthermore, we have looked into the 

specific character of the African rural societies and land tenure. Opinions questioning the 

superiority of individualisation of land have been reflected. Finally, the new Tanzanian 

land legislation has briefly been presented, focussing on the Village Land Act. It has to 

be stressed, that the implementation of the Village Land Act is by no means completed. 

On the contrary, the major achievement is still to be done. Being aware of this, any 

present-day evaluation of the future result can merely be of speculative nature. 

7.1 Right of occupancy versus freehold tenure 

When comparing the bundle of rights attached to freeholds with those of Tanzanian rights 

of occupancy (See chapter 4), these seem to have much in common. Superficially, the 

empowered right of occupancy in the land acts aims to equip and authorise the landholder 

with property rights being similar to the property rights of a corresponding 

freehold. Beside the exclusive rights to cultivate, expel outsiders and erect buildings, also 

dispositional rights are made equal to those of a freehold. Among these are rights to 

transfer the ownership by inheritance, by sale or as a gift. Rights for villagers to 

mortgage, lease out or sub-lease the land rights are also provided for in the land acts. 

The forerunner Nyerere 

When studying the writings of Julius Nyerere, this empowerment of the right of 

occupancy-instrument hardly consists of any new ideas. In his article on national land 

from 1958, Nyerere argues that the genuine solution to the land question ought to be land 

given to everybody under certain regulations and instructions, laid down in the leasehold 

agreement. He maintains that land shall remain the property of the public, but 

nevertheless, guarantee for the leaseholder not to be interfered with, in his right to use the 

land. Nyerere proposes a leasehold system, enjoying “all the advantages of a freeholder 

of land but does not experience the disadvantages faced by the latter.“ The disadvantages 

that Nyerere refers to, is the unavoidable favouring of the wealthy, and the social 

inequality, that he foresees as a result of a free land market. 

Already some 50 years before the land acts, Nyerere’s vision was clear. At that time, he 

seems to have been a strong believer in the power of the individual initiative, “Once you 

give a man sufficient land for all his requirements, and assure him that he will not be 

61

evicted from his land, and that capital will be available to him, you have actually given 

him all he needs to translate his energy and sweat into definite things to satisfy his 

requirements.“ (Nyerere, 1958:56f) Also the financial reality was thought through, 

“In addition, he is allowed to use his land as security if he wishes to raise a loan.“ 

Regrettably, some fifteen years later, state controlled compulsory resettlements were 

parts of the official land policy. It turned out to be a decade-lasting reform program that, 

probably contrary to its initial intentions, uprooted peoples from their homelands, and 

robbed them of their power of initiative. (See chapter 2) 

7.2 Criticising the land acts 

State control 

In our search to find differences between the two land systems, we have to look closer at 

the power of state control over land issues. In the following, two themes are discussed: 

the centralised administration, and public interference in individual property rights. 

The fact that the radical title to all land is vested in the president, with the commissioner 

for lands as the ultimate land manager, (Shivji, 1999(1),Wily, 2003:33) means that 

different permissions have to pass through a costly and time-consuming bureaucratic 

procedure. Considering the very slow pace of communication between villages and the 

central administration, this procedure will most likely frustrate village development. 

It also appears that the desired efficient management is likely to be hampered by political 

struggle over land resources. It seems like the relation between village land use and the 

state, can be seen rather as a relation of management and administration, than of rights 

and obligations. (Chaula, 2004:27) This inherent lack of independence for the villages 

has been one of the major points of critique against the structure of the new legislation. 

The influential scholar Issa Shivji has long argued the faultiness of not allowing the 

villages true independence and local participation by vesting village land in their own 

organs, the village assemblies. Doing this would enable the land users to enjoy the full 

rights of use, control and management over their land, whereas the task of the public 

administration would solely be to support them with advice and technical assistance. 

(Shivji, 1999(1)) Under the present top-administered structure, Shivji argues, the village 

council administrates village land rather as an agent for the commissioner, than as an 

organ of the village, accountable to the village assembly. With the experience and 

perspective of having been the chairman of the former land commission, Shivji points out 

that land administered by a central bureaucracy, has led to problems associated with 

corruption, nepotism, unconscionable allocations and uncertainty. (Shivji, 1999(2)) 

It remains obscure how the weaknesses of inefficiency, delay and corruption will be dealt 

with through the new legislation. 

In freehold systems aswell, the state enjoys legal authority to, under certain 

circumstances, intervene in individual property rights. Although there is great variation 

among societies, the limits for such interventions are still rather fixed and predictable. 

Circumscription of rights for reasons of national or public interests are fairly common. In 

a state governed by law, such circumscriptions may, by no means, be based on arbitrary 

62

principles, but must be supported by formal law. Even compulsory acquisition can be 

made possible, although only under the constitutional obligation to offer due 

compensation. With the tragic experiences from a furious villagisation process, Tanzania 

has got a long way to go before justification in this matter will finally be reached. Even 

though land security is greatly improved through the land acts, the legislation still lacks 

serious writings defining and limiting intrusion on individual or communal property 

rights. 

Protectionism 

In order to protect villages from foreign intrusion, preserving its ownership structure, the 

Village Land Act formally allows transferring of rights to land only between citizens 

already resident in the village. This condition includes anyone who intends to make the 

village his residence, or a non-village body, which has the village as its main place of 

business. (Wily, 2003:35) This regulation is negotiable, and outsiders may with the 

consent from the village council be allowed to acquire village land. According to the law, 

a prospective land-holder must, though, absolutely be “A Tanzanian citizen of African 

descent“, (LA 1999: s.2) which is to be interpreted as an expression of protectionism. 

Until the financial liberalisation of the 1980s and 90s, similar restrictions were common 

also in western land legislations. But, as a result of the increasing liberalisation and 

globalisation, these restrictions have mostly been abandoned. Realising that one of the 

intentions of the Village Land Act is to protect and preserve the vulnerable village 

structure and the customary land tenure, this protectionism seems fully understandable. 

7.3 Discussing the implementation 

Will the Village Land Act be fully implemented? 

As mentioned earlier, the work of implementing the legislation must be seen in a longrange 

perspective. Questions and difficulties have to be worked out gradually and 

methodically. An important part of this process is to confront the theoretically elaborated 

ideas with reality. Ever since the initial phase of the process to create a functional land 

policy and legislation, polemic debates have been a successful means in Tanzania. 

Institutes, CSOs, and individual debaters have taken place in the public debate, where the 

politicians sometimes have had to defend and reconsider their opinions. The last-minute 

amendment of the land bill before finally being enacted in February 1999 signifies this 

development. But also in the current process of implementing the land acts, it is of 

decisive importance that critical questions continue to be raised. The ministerial 

administration has to be made aware of difficulties and hazards that need to be addressed, 

as well as to be informed about successful initiatives and pragmatic solutions. 

In the following discussion, some crucial questions will be addressed, that have come to 

mind during interviews with the professors, as well as during the visits to the villages. 

Financial resources 

The issue of financial resources is twofold. First, there is the national level with concern 

for summoning the needed resources at large; and secondly, the limited financial 

resources at village level. There is no doubt that the realisation of the implementation 

63

depends on the amount of resources that are being granted. Unfortunately, there seems to 

be a passive attitude among the district officials of awaiting superior instructions, despite 

the fact that it is required of the districts themselves to budget and take responsibility for 

the development of the implementation process in their area. (Symposium 2005, paper 4, 

Kipobota & Mafoe) One reason might be that their already strained budgets lack 

resources for taking any initiatives at all. Time will tell if the excessive administrational 

procedures are becoming too costly. Doubtlessly, the government is relying on financial 

support from foreign donors, but it would; nevertheless, be to repeat a historical mistake 

to put the nation in a situation of severe debt and dependence, by building a resourcedemanding 

administrational structure. This is namely the unpleasant situation for some of 

the South-East Asian countries that have accepted to be strongly influenced by advice 

from donors and the World Bank. (Palmer, 2000(2)) 

Next question at issue concerns the limited financial resources of the villagers. It is yet to 

be evaluated, whether the costs of achieving certificates of the customary held land is 

going to be considered worthwhile for the majority of the villagers. As the law protects 

the security of tenure for registered and for unregistered land alike, the main gain from 

achieving certificates would be the possibility to apply for a loan, using the land as 

security. In order to do this, the land first has to be valued by a recognised land-valuer, 

and quite many forms have to be administered. This will take time and cost money. On 

top of the different administrational costs, the holder of a certificate is levied an annual 

land rent which those without certificates continue to be exempted from. 

Interviews with village chairmen and village land officers make clear that the foremost 

expectation of the implementation of the Village Land Act is the opening up of a 

possibility to mortgage the land. Professor Kironde at the UCLAS warns for false 

expectations. He is convinced that the commercial banks will only be interested in giving 

loans to small holding farmers in good and productive areas, where land is estimated to 

high values. Hence, villagers in poorer areas will probably never be able to avail 

themselves of these legal improvements. (Interview, Kironde) 

Administrational complexity 

Connected to the above mentioned issue of centralised administration, comes the question 

of unnecessary administrational complexity. The Village Land Act requires commodious 

administrational handling of documents; an exchange of applications, offers, admissions 

and certificates between the villages and the district authorities, and sometimes even with 

authorities at national level. Considering the underdeveloped means of communication, 

where most villages lack both electricity and telephone, it is questionable whether the 

flow of documents for permits, approvals and signatures, will ever come to work in a 

smooth and efficient manner. Another aspect is that similar structures are rather 

vulnerable for administrational power struggles and corruption. In order to avoid such 

inconveniences, large efforts will have to be put on transparency and accountability at all 

levels. The uttered critique of this process, for being unnecessary bureaucratic, seems 

legitimate. Especially when considering the previous oral tradition on the countryside, 

which have resulted in a lack of record-keeping accustomedness at village level, and a 

general unfamiliarity of using forms. (Wily, 2003:8), (Sundet, 2005:129f) 

An adjacent issue is the keeping of accurate registers. The Kenyan experience has shown 

64

that the customary way of behaviour is resilient. (Palmer, 2000(2)) When people do not 

see the immediate advantage of a more costly and complex method, they keep to their 

usual, informal way of performing land division and disposition of rights. If the registerkeeping 

is not performed correctly, it will not take long to make the land register 

unreliable, which would ruin the whole system. 

Merging social factors with business economy 

Nyerere´s presumption that land in itself should have no value has merely shown to be a 

naive vision. In a society influenced by monetary values, where everything, even time, is 

given monetary value, tangible things like goods and rights, are being preferred. When 

merging cultures the way that is being done in the global economy of our time, it requires 

respect and sensitivity to give fair weight to each culture being involved. By failing to 

accomplish this, the many different minorities will find themselves losing what has 

previously been considered valuable in their culture. For them, social values, such as 

affiliation to a group, or the ability to practise a profession and maintain social functions 

hold financially immeasurable values. In customary cultures, these vital functions are 

often closely connected to land-holding, and are not possible to be measured and 

monetary compensated for. Even if an abundant monetary compensation would be given 

for land being sold, most beneficiaries would not be accustomed how to turn the money 

into something equally useful as what is lost. This social aspect of land holding contains 

emotional factors opposing a pure monetary logic, but may, nevertheless, be fully and 

equally rational. 

Differing land values and opportunities 

Now, the gap in wealth and income between citizens sharing the same land legislation 

makes the value of money differ very much from person to person. Land prices that 

would mean a fortune for one person, may barely be a month’s salary for someone else. 

Continuing to reason in terms of business-economy, the willingness to buy or sell 

property depends on the alternative use of the land. In fertile, agricultural areas, or where 

land holds other valuable qualities, the financial land-value will always be high; whereas 

in drier, remote areas, land will be of no other use than for extensive farming or 

traditional cattle keeping. In these latter areas, where land is abundant, the idea of land 

being without monetary value may still have legitimacy. Here, the turnover of land 

transactions is low and solely local land markets exist. Consequently, the esteemed value 

of the land will be significantly lower, which will affect the willingness of the banks to 

give loans according to the provisions in the land acts. Hence, the most popular 

component of the legislation, the mortgaging opportunity, would in larger parts of the 

Tanzanian countryside, have almost no worth at all. It is therefore questionable whether 

the population in these vast areas will find it worthwhile to make any efforts to adapt to 

the new legislation. In order to somewhat equally attract the entire rural population, the 

land acts would be in need of a greater variety of incentives that can also address landholders 

in financially not so attractive areas. 

65

Future scenarios 

In order to estimate the outcome of the implementation, the development of the following 

few areas are crucial; funding the implementation process; the registering activity; the 

teaching and inspiring activities; the willingness of the banks to give loans; the question 

of justice and equity in land allocation and land holding, and finally; administrative cost 

efficiency. 

Below, two scenarios are imagined in order to somewhat pull the scattered considerations 

together. First, an ideal prospective development is sketched, followed by a somewhat 

bizarre worst-case scenario. 

Scenario 1. An ideal development 

In an ideal scenario, the implementation process develops well, spreading the teaching in 

the land laws and the gained experience from the first pilot areas across the entire nation 

like waves on the water. VEOs and other administrational staff are being employed and 

educated in sufficient numbers. Each DLO establishes good relations with the village 

leaderships in his district. The DLOs see themselves as skilful servants, helping and 

encouraging the villagers to proceed with the implementation process. Furthermore, they 

are cooperative and take initiatives to develop their own district, as well as to assist 

neighbouring districts with advice and helpful experience. The exchange with the CSOs 

is creative and dynamic. They are encouraged to fulfil their tasks to reach out at the 

grassroots level; informing, explaining and functioning as non-governmental mediators 

between villagers and the administration. For all these activities, there is sufficient 

funding, resulting from a continuous examination of the expenses and how to improve the 

cost efficiency. The register-keeping function is accurate, due to the fact that each 

transaction concerning trade and dispositions are continuously being reported and updated. 

Furthermore, the pledged provision for increased land security concerning 

customary land rights is being fulfilled. This improvement can be sensed through an 

increasing boldness among the villagers to persist in claiming their land rights against 

intrusion. Their complaints before the district authority are observed and taken seriously. 

The social function of land holding is preserved, creating incentives for the poor to keep 

their land, as well as for landless young people to acquire land suitable for farming or 

business. Agreements between pastoralists and farmers are being worked out and 

mutually respected. By means of taxation, the holding of unused land will not be 

advantageous anymore. As a consequence, the well-known phenomena of absent 

landowners and telephone farmers will drastically decrease. This positive development 

offsets landlessness while attractive lands that have previously been locked up will be 

released. The expected outcome from the mortgaging possibilities is fulfilled. The banks 

are recognising certificates of customary rights of occupancy as secure documents and 

are allowing loans to farmers that have been able to present plans for improvement and 

development of their land. 

Scenario 2. A worst-case development 

Imagining a worst-case development, would first of all include a half-way halt in the 

implementation process, due to drained financial resources. This has been the case in the 

neighbouring Uganda. (Palmer, 2000(1)) From this unpleasant position, the Tanzanian 

government would have no place to retreat. The legislation would still be the only 

66

working land law, although not able to be empowered. 

Furthermore, the registration activity and the administrational handling are vulnerable 

areas. Imagine that the application procedure and administrational handling turns out to 

be unacceptably lengthy. This would lead to that villagers get weary of waiting for the 

promised certificates or for other instruments that are required to make use of the 

empowered titles. Possibly, the district and village administrations will not succeed to 

build the registering structure the way it is required. The accuracy of the registers will 

therefore fail to be reliable, which means that the registering instrument turns out to be 

more or less useless as foundation for land security. The reluctance of the banks to allow 

loans using land as security sparkles a wave of disapproval and distrust among the 

villagers. This development spreads throughout the nation and smothers the initial public 

enthusiasm towards the possibilities of the land acts. The certificates show to be of 

almost no real value and hardly any villagers are any longer interested in achieving them. 

Instead, people are consciously avoiding participating in the fulfilment of the Village 

Land Act. The villagers return to act the way they are used to when handling trade and 

dispositions of land. Being deeply frustrated by the situation, the government decides to 

interpret the obscure phrase defining general land strongly at the expense of the villages. 

Previously communally held, “unoccupied or unused village land“ is being withdrawn 

the influence of the village councils and instead incorporated into the general-land 

category, and placed directly under the authority of the commissioner for lands. 

Finally, even if none of these hazards will be fulfilled, and the implementation turns out 

to be very successful, there will still be a constant struggle to prevent and avoid 

opportunities for corruption and misuse of powerful positions, especially as the law 

supports strong top-down devolution of authority. 

Concluding thoughts 

According to Ms Wily, the Tanzanian land acts are basically sound. She even goes on to 

call them “The best land law passed in Africa in terms of ´vesting authority and control 

over land at the local level´“. (Palmer, 1999) Whether this is true or not, will be for the 

future to examine. Also many other presumptions connected to the land legislation have 

to be passed through reality, before it is possible to know how they will actually be 

received. The cited interviews reflect the positions and ideas of a limited number of 

individuals. They draw conclusions from their bases of knowledge, experience and points 

of view. Despite this inherent subjectivity, it is likely indisputable that the decisive 

factors of success for the implementation will be: i) the future decisions and policies of 

the national leadership: ii) the collective choices and actions of the villagers themselves, 

whether to support the implementation or to reject it; iii) the factors of the surrounding 

world, that like previous land reforms will influence the financial environment in which 

the implementation is being launched. 

Finally, every country has its individual specifics. Moreover, there are even to some 

extent differences within the country itself, which makes any land legislation an 

inherently national issue. It is possible to learn from the experiences and mistakes of 

other nations, but the national law itself will have to meet country-specific issues, and be 

adapted to country-specific conditions and problems. The previous Land Ordinance was 

put upon Tanzania from above, creating a legal framework that never fully recognised 

large parts of the Tanzanian country specifics. In this aspect, the land acts seem to be 

67

etter tailored, although it is also criticised for having obvious weaknesses. A relevant 

factor in this discussion is that this important piece of legislation is created in a 

democratic environment, and will therefore be able to be further moulded through the 

coming years of public debate. Counted as work-pieces, the Land Act and the Village 

Land Act are undoubtedly indicating a promising future for Tanzania. 

68

8. References 

Published literature 

Fitzpatrick, M. 2002, Tanzania. Lonely Planet, Victoria (Australia) 

Friis-Hansen, E. 1986, Changes in land tenure and land use since villagisation and their impact on peasant 

agricultural production in Tanzania. Centre for Development Research, Copenhagen & Dar es Salaam 

Havnevik, K. & Hårsmar, M. 1999, Diversified Future -An Institutional Approach to Rural Development in 

Tanzania, Almqvist & Wiksell International, Stockholm 

Hydén, G. 1972, Socialism och samhällsutveckling i Tanzania, Bo Cavefors Bokförlag 

James, R.W. 1971. Land Tenure and Policy in Tanzania, East African Publishing Bureau, Nairobi 

James, R.W. & Fimbo, G.M. 1973, Customary Land Law of Tanzania, East African Publishing Bureau, Dar 

es Salaam 

Lunden, P. 1990, Tanzania reiser seg, NORAD (Norway) 

Maliyamkono, T.L. & Bagachwa, M.S.D. 1990, The Second Economy in Tanzania, East African Studies, 

Heinemann, Nairobi 

Ndjovu, C.E. 2003. Compulsory Purchase in Tanzania, PhD thesis, Royal Institute of Technology (KTH), 

Stockholm 

Perry, M. 1997, Western Civilization -a Brief History. Houghton Mifflin, Boston 

Pejovich, S. 1990, The Economics of Property Rights: Towards a Theory of Comparative Systems, Kluwer 

Academic Publishers, Dordrecht, the Netherlands 

Wily, Liz A. 2003, Community-based land tenure management. International Institute for Environment and 

Development (IIED), Issue paper no.120, Tanzania 

Published articles 

Alchian, A. & Demsetz, H. 1973, The Property Rights Paradigm, The Journal of Economic History, Vol.13 

(March 1973:16-27) 

Bromley, D.W. 1992, The Commons, Common Property, and Environmental Policy, Environmental and 

Resource Economics, 2:1-17 

Demsetz, H. 1967, Toward a Theory of Property Rights, American Economic Review, 57 (May 1967:347- 

59) 

Hardin, G. 1968, The Tragedy of the Commons, Science, Vol 162:1243-48 

Nyerere, J.K. 1958, National Property. From: (1966), Freedom and Unity, a selection from writings and 

speeches 1952-1965, Oxford University Press, Dar es Salaam, pp.53-58 

Shaw, W.H. 2003, ´They Stole Our Land´: debating the expropriation of white farms in Zimbabwe, Journal 

of Modern African Studies, 41:1 (2003), pp 75-89 

69

Magazine and newspaper articles 

Kyaruzi, I. 2002, Poor legal framework hinders banking sector, Business Times (Dar es Salaam), 6 th of 

September 2002, p.1 

Mweta, N. 2004, Setting out land sector policy priorities, reasons…, Business Times (Dar es Salaam), 27 th 

of February 2004, p.5 

Nevin, T. 2004, The Great Trek North, African Business, July 2004, pp.28-29 

Palmer, R. 1997, Land and the need for cooperation in East Africa, published in the East African, 10-16 th 

of March 1997 

Obtained under: oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_east.htm 

Last visited: December 2005 

Shivji, I. (1999-1), Lift the Whip –Palaver: The Land Bills, published in The African (Tanzania Edition), 6 th 

of February 1999 

Obtained under: oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_east.htm#Tanzania 


Internet articles 

van den Brink, R. 2003, Land Policy and Land Reform in Sub-Saharan Africa: Consensus, Confusion and 

Controversy. Preliminary draft (April 2, 2003) 

Obtained under: oxfam.org.uk/what_we_do/issues/livelihoods/landrights/africa_gen.htm 


Heldgaard, I, Portrait of Tanzania, MS 

Obtained under: tanzania.ms.dk/Tanzania/tanportuk.htm 

Last visited: February 2005 

Palmer, R. 1999, The Tanzanian Land Acts, 1999; An Analysis of the Analyses, (March 1999) 



Palmer, R. 1998, Oxfam GB´s Land Advocacy Work in Tanzania and Uganda: The End of an Era? 



Palmer, R. 2000(1), Learning Lessons from Land Reform in Africa, publ. In ZERO Newsletter January. 

2000. 



Palmer, R. 2000(2), The World Bank,Civil Society and Land Reform, 



Quan, J. 2000, Box on the Evolution of the World Bank´s Land Policy, from chapter of a book, Evolving 

Land Rights, Policy and Tenure in Africa, edited by Toulmin, E. & Quan, J., published by IIED and NRI 



Shivji, I. (1999-2), The Land Acts 1999: A Cause for Celebration or a Celebration of a Cause?, Keynote 

address to the Workshop on Land held at Morogoro, 19-20 February 1999 



70

Legislation 

Land Act, 1999, (Act No.4 of 1999), The United Republic of Tanzania, Tanzania 

Village Land Act, 1999, (Act No.5 of 1999), The United Republic of Tanzania, Tanzania 

Official documents 

Ministry of Lands, Housing and Urban Development, 1994, Report of The Presidential Commission of 

Inquiry Into Land Matters, Volume 1: Land Policy and Land Tenure Structure, Dar es Salaam, Tanzania 

Ministry of Lands and Human Settlement Development, 1997, National Land Policy, 2 nd Edition, Dar es 

Salaam, Tanzania 

World Bank, 1974, Land Reform. World Bank Development Series. Washington D.C. 

Deininger, K. 2003, Land Policies for Growth and Poverty Reduction. World Bank and Oxford University 

Press 

Dissertations and academic material 

Chaula, A. 2004, Titling Village Land in Tanzania, Dissertation, June 2004, UCLAS, Dar es Salaam 

Jafari et al, 2003, Issues in Implementing the Land Act, 1999 and the Village Land Act, 1999, Project 

Report, June 2003, UCLAS, Dar es Salaam 

Josefsson, E, and Åberg, P, 2005. An Evaluation of the Land Laws in Tanzania, Masters Thesis at the MSc 

Programme in Economics, Luleå University of Technology, Sweden 

Obtained under: http://epubl.ltu.se/1404-5508/2005/057/LTU-SHU-EX-05057-SE.pdf 


Zainab, P. 2004, Capacity Building in Implementing Land Act and Village Land Act of 1999, Dissertation, 

June 2004, UCLAS, Dar es Salaam 

Workshop papers and other material 

Report on the Proceedings of the Symposium on Implementation of the 1999 Land Acts, 1-2 nd March 2005, 

Courtyard Hotel, Dar es Salaam 

-Paper 1: Overview of the Status of the Implementation of the 1999 Land Acts, by A.Msangi, Commissioner 

for Lands 

-Paper 2: Practical Experience in the Village Land Act of 1999, by E. Gayewi, Coordinator, Ujamaa 

Community Resources Trust (UCRT) 

-Paper 3: Strategic Plan for the Implementation of the Land Acts (SPILL) of 1999, by Prof.Hayuma, 

Advisor to the Permanent Secretary of MLHSD 

-Paper 4: Community Based Experience of the Implementation of the 1999 Land Acts, by C.Kipobota & 

G.Mafoe, Legal and Human Rights Centre (LHRC) 

-Paper 5: The 1999 Land Act and Village Land Act: a technical analysis of the practical implications of the 

Acts,by G.Sundet, REPOA 



Palmer, R. 2004, Land as a Global Issue –A Luta Continua, Paper for Oxfam-Zambia Copperbelt 

Livelihoods Improvement Programme Land Workshop, 29-30 March 2004 



71

Quan, J. 2003, Reflections on the development policy environment for land and property rights, Workshop 

background paper (draft) prepared for the International Workshop on Fundamental Rights in Balance: New 

Ideas on the Rights to Land, Housing and Property, Institute of Development Studies, University of 

Sussex, 16-18 October 2003 



Utrikespolitiska Institutet, Landguiden Tanzania, Kapitel: Politiskt system, Modern Historia, Ekonomi 

Obtained under: landguiden.se/pubCountryText.asp?country_id=166 

Last visited: October 2004 

Carney, D. & Boyd, C., DFID: Land Tenure, Key Sheets for Sustainable Livelihoods, April 1999 

Oral sources 

Interview 2004-12-04 with Mr Jonson Kami, Legal Expert within the Village Land Act Implementation 

Task Force, Ministry of Lands, Dar es Salaam 

Interview 2004-12-13 with Mr Fidelis Kashumba Mutakyamilwa, Chairman of the Village Land Act 

Implementation Task Force, Ministry of Lands, Dar es Salaam 

Interview 2004-12-14 :1 with Mr Israel Celestine Simba, Land Law Specialist at the Department of Land 

Management and Valuation at the University College of Land and Architectural Studies (UCLAS), Dar es 

Salaam 

Interview 2004-12-14 :2 with Professor Wilbard T. Kombe, Department of Urban and Rural Planning, 

URP, at the University College of Land and Architectual Studies (UCLAS), Dar es Salaam 

Interview 2004-12-17 with Professor J.M. Lusugga Kironde, Department of Land Management and 

Valuation, LMV, at the University College of Land and Architectual Studies (UCLAS), Dar es Salaam 

Interview 2005-01-12 with Mr Bramsiden Laimos Sichone, District Land Officer in the Mbozi district, 

Mbeya region 

Interview 2005-01-13 :1 with Mr Simon Mbuzi, former Village Chairman (up to the December 2004 

elections) in the Halungu village, Mbozi district 

Interview 2005-01-13 :2 with Mr Stephan Mnozya, Village Chairman in the Halambo village, Mbozi 

district 

Interview 2005-01-31:1 with Mr Chedieli E. Mrutu, District Land Officer in the Babati district, Arusha 

region 

Interview 2005-01-31:2 with Mr Halifa Bou, Village Executive Officer in the Mwinkatsi village, Babati 

district 

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of the implementation of the Village Land Act

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