At first glance, there is much to like about Tanzania’s proposed draft National Land Policy 2016. It provides strong statements on equal access to land for both women and men and it has, for the first time in the history of Tanzania, recognized the rights of the most marginalized and indigenous communities, such as hunter-gatherers. Nonetheless, the draft policy still needs further improvements. It contains statements that are either unclear, or controversial and there are also missing statements and provisions, which would be well addressed by the drafting team if they were to engage further with stakeholders and seek additional public feedback and commentary.
The current draft policy acknowledges that the National Land Policy of 1995 was, “…hampered by ineffective policy implementation occasioned by ineffective land administrative machinery, lack of the implementation strategy, plurality of land institutions and limited political will” (pp 16). To address these shortcomings the drafters of the current draft policy state that they have followed the cabinet guidelines for policy formulation by having incorporated sectoral policies and paid attention to the national development framework, in having carried out consultations in eight zones, and in having drafted an implementation strategy alongside the new policy.
We focus here on suggesting improvements to key statements in the draft policy as well as setting out others which we consider to be currently missing. We think this could further strengthen the current draft policy in ensuring that it is inclusive and people-centered both in its drafting as well as in its implementation.
Although the new policy drafting process included consultations conducted in eight zones across the country, these were rather rushed and were not sufficiently inclusive. This has left many people uninformed about the policy and its formulation process. Even those who did participate were insufficiently prepared to be able to contribute meaningfully. For example, a first consultative stakeholders meeting took place in Dar Es Salaam on 18th April 2016, and only 48 among the over 100 invited stakeholders participated.
Although the secretariat leading the consultation process acknowledged the challenges that they faced in gathering the initial views of stakeholders, they nevertheless continued on with the rather compromised process. For example, as we write, only 21 civil society organisations (CSOs) have been invited to attend the first consultation event to be held on the 23rd November in Morogoro - among them are the better-resourced ‘big international NGOs’ (BINGOs). Most of these CSOs received confirmation of their participation around 6pm on 21st November, making some of them unlikely to attend due to logistical difficulties. The decision to invite a limited number of CSOs representatives at such short notice and after persistent requests by CSOs is not in line with the Government’s commitment to inclusive and open government.
It is uncertain how many consultation events will be held before the final version of the National Land Policy is tabled for Cabinet approval. It is additionally unclear whether the draft policy implementation strategy will be shared for public review, comments and improvement.
This state of affairs leaves some doubt as to whether the consultation process will realize the right to participate of as many citizens as possible, including scholars as well as many other groups, given the hasty nature of the process and the inadequate level of information available in the public domain. If the consultation process remains as it is, it is likely to lead to far-reaching short and long term conflict among CSOs, among communities, and between communities, investors and the state. Already, the current process seems to have divided CSOs into two groups - an elite group of better-resourced and informed NGOs that has participated in the review process, and a much larger group of local CSOs that have so far been excluded. This division between NGOs and CSOs, although perhaps not as obvious, has been made rather clear in how the Secretariat has managed the communication process between them, and the public at large.
General Land versus Village Land
The new draft keeps the same legal framework under which Village Land is transferred to General Land for either public or private investment, despite many research recommendations over the years which have suggested much needed reforms. The transfer of Village Land to General extinguishes villagers’ customary rights to this land, with far reaching short and long term adverse implications. The proposed provisions in the draft policy for full, fair, and prompt compensation do not go far enough, particularly in relation to addressing the need to take care of the adverse intergenerational impacts for displaced people. For most Tanzanians, land forms the basis of their family’s livelihood and its intergenerational wellbeing. Given the significance of land, displaced people should instead be recognized as stakeholders in each land-based investment in relation to the land assets they contribute, deserving equitable ongoing gain from the economic, environmental and social benefits that result from such investments.
The importance of Village Land cannot be underestimated. As the draft policy states, about 69.5% of the country’s land is Village Land held under customary rights of occupancy and it supports the livelihoods of 80% of the population. Currently, there are only 5.5% of granted titles for General Land in the country (sec. 1.3.2).
The current draft policy suggests the review of the, “… definition of registration of CCRO’s and its transaction under the Land Registration Act and the Village Land Act. Harmonization of the Land Act and the Village Land Act on the definition of General Land and Village Land” (sec. 4.6: xi. c). These are critical issues for communities. For example, it is tempting to suggest that the government is likely to want to transfer what it perceives to be unused Village Land to General Land in its efforts to establish land banks suitable for large-scale investments, including foreign investments. Therefore, collecting wide-ranging views on these issues will help those drafting the policy to field not only constructive criticisms, but also alternative views and inputs in order to enrich and improve the current draft.
While the Commissioner of Land is still the administrator of General Land, the 1999 Village Land Act devolves these powers for Village Land to the Village Council. This was one of the most progressive outcomes of the land governance reforms during the 1990s. The current draft policy needs to go further by enhancing the powers of the Village Council and Village Assembly (all village members over the age of 18), and more importantly, the powers of Parliament as the country’s top oversight institution in land governance, management and administration.
Titling of all Land
Titling is one form of securing individual and communal rights over land, but as research has shown, it is neither the priority for the majority of people in the country, nor the solution to the current shortcomings of land administration in the country. The core problems of land administration are poor administration, incompetent staff, corruption and widespread ethical decay among civil servants and wider society, which has become particularly acute in recent years. Land titling by itself will neither solve these challenges, nor will it improve the livelihoods of poor rural communities, nor will it help the nation attain its development goals.
Current land titling initiatives ignore extensive evidence from across Africa, most notably in Kenya, that individual titling does not achieve the goal of securing tenure, and may even accentuate inequalities among rural communities, with particularly negative impacts on women. Also, it is important to remember that secure tenure is not by itself a sufficient condition for the improvement of farmers’ incomes; the ‘context’ is what ‘matters’.
For the current policy to be inclusive and people-centred the Ministry’s team responsible for this draft policy needs to ensure that after releasing the first draft they carry out wide consultations across the eight zones of the country. They should further consider taking the following actions.
- Translate the draft policy into Swahili, the national language, to make it accessible to all citizens, particularly the majority of rural farmers, pastoralists, fisherfolk and hunter-gatherers – most of whom cannot read or write the English in which the draft policy is written.
- Extend the current consultation meetings from the current three events planned to take place in Morogoro on the 21st, 23rd and 25th of November to gather wide-ranging comments and views from diverse groups of people who are likely to be unrepresented by the invited select organizations.
- Ensure the policy is cent red on the enhancement of land use and land-investments by the country’s citizens, most of whom are small-scale producers – farmers, pastoralists, hunter gathers and fisher folks.
- Make it clear how the draft land policy relates to international conventions, the trade treaties to which the country is a signatory – for example, the World Trade Organization's rules, which have direct implications for all land beneficiaries including small-scale producers and foreign investors.
- Ensure the policy states that the government will specifically empower CSOs/NGOs which work on land rights issues to provide the necessary land tenure-related civic education to the country’s citizens as part of the new policy’s objectives. This is critical for helping ensure the effective implementation of the policy, given the fact that many people are not fully aware of the danger of losing their land completely if they use their land as collateral for debt and later fail to repay such loans. Until people have adequate understanding of this new environment of rights to land, the danger of disenfranchisement is very high particularly among poor rural women and men.
- The government needs to handle land matters with extreme care as debates over the access to, use of, and ownership and control over land is potentially a socially and politically explosive matter. We should avoid, at any cost any attempt to politicise land matters since doing so is likely to disrupt our hard earned national cohesion and solidarity. Finally, it is worth noting that these are only a few items among many issues that need further scrutiny to ensure that the new policy is people-centered and addresses issues of increasing inequality, and ethnic and class struggles over land in the country.
Authors write in their personal capacities.