The Effect of New Land Acts on Custumary Landtenure System

"In my view the law in Tanzania on land tenure is still developing and certain areas are unclear and would have to await the necessary legislation. At any rate I am not prepared on the rather inconclusive and tenuous arguments advanced in this appeal to hold that the right of a holder of a right of occupancy by virtue of native law and custom is extinguished and thereby becomes "a squatter" on an area declared a planning area".

Mustafa, J.A.1

Mustafa, J.A, was stating the existed position at that period that customary land tenure was insecure in areas declared planning area. This study is mainly planned to show the position /status of the customary land tenure as against statutory right of occupancy. Whether they co-exist or one is extinguished at the expense of the other and why.

Further that, if at all they co- exist whether they are equal or not. At the end of the study the status of these two land tenure shall be established focusing on the two land Acts.

2. Background to the Problem

Human development and existence depends on land. Land is a determinant factor of socio - economic and political development. It is an essential form of wealth creation. Therefore the question of land tenure is paramount.

Approximately 85% of Tanzanians live in rural areas where land is mainly occupied under customary tenure.

_________________________

1 In Methusellah Paul Nyagaswa Vs Christopher Mbote Nyirabu (1985) TLR 103

1

The customary land tenure has been fragile since colonial times up to the enactment of the Land Act No. 4 of 1999 and the Village Land Act No.5 of 1999.

The German Imperial Decree of 1985 stated that: "......All land in East Africa shall be regarded as un-owned; ownership of such land is vested in the empire"2

The British administration continued to exercise monopoly over land. It passed the Land Ordinance of 1923. This ordinance of 1923 declared all land of Tanganyika as public lands vested on the Governor to be disposed at his own discretion for the use and direct or indirect benefit of the natives. Thus, section 3 stated that:

".The whole of land of Tanganyika whether occupied or unoccupied on the date of the commencement of this ordinance are hereby declared to be public lands...."3

However, the Land Ordinance in its Original Form of 1923 was heavily criticized by the permanent Mandate of League of Nations, as it pointed out that the term "public" was vague on who actually was the owner of the land in Tanganyika.

The general policy relating to land in Trust Territories was laid down in Article 8 of the Trusteeship Agreement which stated that: ".... In framing laws relating to the holding or transfer of land and natural resources, the administering authority should take into account native laws and customs"

____________________________

2 Section 1 of the Imperial Decree of 1895

3 Section 3 of the Land Ordinance of 1923.

4Article 8 of the Trusteeship Agreement.

2

Similarly, Article 24 of Tanganyika Order in Council of 1920 directed the courts to be guided by customs and native laws, so far as it was applicable and not repugnant to justice and morality.

Again the preamble to the Land Ordinance of 1923 purported to provide that, the existing customary land tenure of the native of Tanganyika territory to use and enjoy the land of the territory and natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their posterity should be assured, protected and preserved.

The legislation was found meaningless in its actual practice. The Ordinance itself did not define what interests Africans had in the land and gave no legal security to