Análisis de datos

The case elaborated in this chapter, forest land rights in Tanzania, is not the only occasion whereby fairer and more workable natural re- sources law has been pursued through an experiential and community- based approach, extending well beyond public consultations.

Benin is another case where a new land law is emerging out of sub- stantial piloting in villages (Lavigne Delville 2004). Cases most familiar to this author include Afghanistan and Sudan (Alden Wily 2008b). In Afghanistan the issue at stake is the ownership of the massive pasture resource, which embraces anywhere from 45 to 65 percent of the na- tional land area and supports millions of rural families. Unclarity as to its ownership has blighted state-people and inter-tribal relations for the last century and was one of many drivers to civil war in the 1980s. The early post-conflict administration from 2001 remained resistant to amending the status of pasture as government property and which it had chosen to allocate to favoured Pashtun nomadic groups, thereby overlaying rights often anciently held by settled populations. It fell to interested conflict resolution actors working with local communities to trial more workable paradigms, gradually involving key government de- partments. The result in 2008 is a quite radically altered draft Range- land Law sponsored by the Ministry of Agriculture. It remains far from clear that sufficient support can be garnered from other government agencies, politicians (and conservative foreign advisers) to see these proposals into law, and from law into active application. Reluctant gov- ernment support in the piloting exercises which underwrite the new proposals suggests that willingness to genuinely devolve even the regu-

latory powers communities need to be effective, is hard to come by, in an environment which remains determinedly centralised. While gains have been made it is unlikely at this point that community-based pas- ture management will be underwritten with acknowledgement of com- munities as pasture owners (Alden Wily 2008c).

In 2004-05, a comparable learning by doing initiative was launched in central Sudan to tackle contested relations between Khartoum and communities over the ownership of invaluable plains lands (Alden Wily 2008b). This proved even less successful in that resulting drafted legislation in the two states of Southern Kordofan and Blue Nile never reached their legislatures and showed no sign of doing in the years since. Nevertheless, the process of working in the field with commu- nities to devise fair and workable new tenure law has had other positive outcomes; many tens of rural communities have used the exploratory experience to clarify inter-tribal and cultivator-nomad disputes over lands and to harden their claims for restitution of millions of hectares of wrongfully appropriated plains lands before and during the civil war. Meanwhile Southern Sudan adopted many aspects of the un-adopted legislation in the north into its own land law provisions, in draft in 2008. Most particularly, these drafts fully acknowledge that customary land rights, including those affecting commons, are property interests and must be fully upheld by courts and administrations alike.

These cases demonstrate that workable legal paradigms can emerge out of practical engagement with those citizens most affected by land and resource legislation and particularly from processes which seek to do more than consult, but to learn by doing. By ensuring that appropriate officials are brought into the process, real progress may be made in breaking down the traditional resistance of officialdom to new paradigms and fostering waning administrative and political will. In this manner, people’s law rather than government’s law has a better chance to evolve and to be more useful and lasting. Where state-people differences over land rights have shown themselves able to all too easily spill into open conflict, as in Sudan and Afghanistan, the adop- tion of a people’s law-making approach is even more urgently required – although it may surely take much longer to bring results than has been exampled in the positive historical environment of Tanzania.

Notes

1 This paper was drafted in February 2008.

3 Some refer to tiny proportions of national populations, such as Norway’s Finnmark Law 2005 recognising Sami land rights and India’s Forest Rights Act 2008 limiting its scope to India’s 10 million forest dwellers.

4 Around three in ten villages do a poor job of carrying through on their plans and one fails altogether; Alden Wily 2002. Also see Blomley and Ramadhani 2006.

5 A sample Village Forest Management Plans is provided in Alden Wily 1995. 6 The Regulation of Land Tenure (Established Villages) Act 1992.

7 The Land Management Programme (LAMP). 8 Sections 8 (2), 14, 30 (2), 34 (5) (6). 9 Sections 14, 34, 65, 78, 79.

10 More dramatic use of this separation of trees from the land had occurred in a num- ber of other African states, such as in Liberia (Alden Wily 2007).

11 The Villages and Ujamaa Villages (Registration, Designation and Administration) Act No. 21 of 1975, superseded by the Local Government (District Authorities) Act No. 7 of 1982, amended significantly in 1992.

12 These cases are reported upon in Alden Wily 1997.

13 The Duru-Haitemba and other early community-based forest management projects in Arusha Region were initiated under the Swedish Regional Forestry Programme but sustained and expanded by the Swedish-funded Land Management Programme (LAMP), continuing until the present (2008).

14 Among which the non-binding Forest Principles and Agenda 21 under Rio in 1992 must prominently rank as globally highly influential. Refer FAO 2002, Ch. 10 for treatment. ILO’s Convention No. 169, adopted in 1989 on Indigenous and Tribal Peoples has also been influential.

15 Government Notices 656 of 1986, 88 of 1987, 338 of 1988 and 260 of 1989, made under Rural Lands (Planning and Utilization) Act No. 14 of 1973.

16 In a case brought by Barabaig against the State, High Court of Arusha Civil Case 27 of 1985.

17 Regulation of Land Tenure (Established Villages) Act No. 22 of 1992.

18 Lohay Akonaay and Another v. The Hon. Attorney-General, High Court of Tanzania at Arusha Misc. Civil Case No. 1 of 1993 (unreported). Akonaay and his son had al- ready successfully appealed against their eviction under the 1987 Government Order which cancelled customary rights in 92 villages, and were threatened with eviction again under the new act.

19 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 31 of 1993. Reported in 1995 2 LRC 399. The full opinion of this landmark ruling is reproduced in Peter 1997.

20 Judgment by C.L. Nyalali, Civil Appeal No. 31 of 1994, Court of Appeal of Tanzania. 21 The Land Act, s. 3 (1) a.

22 Village Land Act, s.18.1. 23 Village Land Act, s. 2. 24 Village Land Act, s.2.18. 25 Village Land Act, s.7.6 and 7.7. 26 Village Land Act, s. 11, 12 and 13. 27 Village Land Act, Part IV Sub Part B.

28 Village Land Act, s.12 and 13 and Village Land Act Regulations.

29 Amendments to sections 19, 20 and 37 of the Land Act, 1999 by The Land (Amend- ment) Act No. 2 of 2004 (s. 2-6).

30 The two main programmes are a World Bank funded programme known as SPILL and a programme launched under the guidance of Hernando de Soto, MKURAMBI- TA, funded by the Norwegian Government.

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