Entrevista dirigida

Not all the recommendations of the Shivji Land Commission were adopted into new National Land Policy in 1995 or eventually into the new land law, comprising The Land Act 1999 and The Village Land Act 1999. The key recommendation not accepted was advice to do away with separation of ownership of the land and ownership of rights to the land, such as Uganda had done by its Constitution of 1995. Therefore all land in Tanzania remains the property of the nation, vested in the President as Trustee.21Land rights are accordingly rights to occupy and use parcels of this nationally-shared property. This explains the terminology of land titles in Tanzania as Rights of Occu- pancy. In the case of customary rights (unlike those granted by the State) the law confirms that these may be held in perpetuity and regu- lated by customary norms.22

Overall the law was at pains to give customary rights the full force of law as private property interests in land. As well as acknowledging that these exist whether they are registered or not,23The Village Land Act is clear that a Customary Right of Occupancy is ‘in every respect of equal status and effect with a Granted Right of Occupancy’ (Granted Rights being those issued directly by the state, not the community, and mainly applicable in urban areas).24 Moreover, rights which elected Village Councils had obtained as owners of village lands on behalf of their communities were extinguished; the new legislation returns the role of Councils to roles of land governance only. Councils are to regulate land relations and may set up Village Land Registers into which customary rights within the area under its jurisdiction (‘village land area’) may be recorded, along with subsequent transactions affecting those rights.25

Critically, the law is abundantly clear that a customary right may be held (and registered) as belonging to not only individuals, but couples, families, groups or whole communities, or even several communities if the ownership is so shared, such as might be the case with forests or pasturage.26

In general there has been little in law since 2001 (the year the land laws of 1999 came into force) that would suggest to communities that their ownership of forests within their respective village land areas is not assured. Furthermore, the new land laws provide for customary land rights to be acknowledged as existing in areas reserved for conser- vation or other public purposes. This has two critical implications: first, should a village ‘reserve’ its forest area (as the new Forest Act would subsequently promote in 2002) this does not remove such lands from customary tenure; communities may be lawful owner-managers. Sec- ond, where gazettement of national forest reserves did not extinguish customary rights then the potential exists for the customary owners of such nationally important areas to retrieve these as their own collective property, although the area need not lose its status as a protected area of national importance. At the time of writing no community has at- tempted to retrieve a National Forest Reserve as community property, although no fewer than one thousand communities co-manage these areas, as shown above.

Limitations

There are however more practical constraints to community secure- ment of local forestlands as their rightful property. The first lies in the process of voluntary registration of rights and to which much of the Village Land Act is devoted. While allowing for spousal co-ownership and other timely innovations, the classical focus of titling remains, that is, as geared towards registering the ownership of private homes, farms

and other fixed assets like shops.27 Communal properties like forests and pastures are placed in somewhat uncertain territory. Helpfully, the law implies that before an individual property may be registered, the community is bound to first identify and describe every communal area within the village land area in the Village Public Charges Regis- ter.28Although there is nothing actually preventing the Council issuing the community with a Customary Right of Occupancy for these com- mons, there is no developed provision in the law to encourage and guide them to do so. Some communities might well wonder if the re- gistration of these properties in the Public Charges Register represents more ‘setting-aside’ of lands against entitlement, than acknowledge- ment of these as private, collectively-owned community property.

A greater constraint to securing communal property arises from the manner in which the land area of each village is defined. Although the Village Land Act is explicit that this may include landotherthan lands which are farmed (s. 7.1) it takes into account the habit of some district authorities of the past as excluding much of the woodland and pasture of communities from the registered description of ‘Village Land Area’. This was a routine occurrence during the 1980s when District Coun- cils and Village Councils were trying to limit the survey costs involved in defining and registering Village Land Areas. As a consequence some communities have found that their traditional forest areas were ex- cluded from the recorded definition of their Village Land Areas.

The new law is also not helpful in offering contradictory definitions of General Land (in effect Government Land). In the Village Land Act, this is described as a residual category as ‘public land is land which is not reserved land or village land’. Contrarily, the definition of the sister Land Act adds ‘… and which includes unoccupied or unused village land’ (s. 2). Most communities try notto occupy their forest lands and many try to declare key areas out of bounds for use, in order to rehabi- litate or protect them. A too literal interpretation of occupation and use could deprive communities of substantial rangeland, wetland and for- est lands.

A more concrete threat to collective tenure security derives from the inclusion of ‘investments of national interest’ as specific grounds on which the President may acquire village land, albeit through elaborated modern compulsory acquisition procedures (s.4). The Investment Pro- motions Board has been working hard in recent years to find land for foreign investors, who are now permitted to directly own and transfer land for such purposes (by amendment to the Land Act in 2004).29 The Board’s Land Bank Scheme seeks ‘unoccupied and unused’ land from villages to provide to investors, backed up by periodic ‘instruc- tions’ from the government to make such land available. As of 2006, 2.5 million hectares had been acquired from villagers through this

scheme (Odgaard 2006) and there is no reason to think that this will not rise as investor interest grows and government persuasion hardens. This is much easier than compulsorily acquiring (and paying for) cus- tomarily-owned village land as communities are simply encouraged to surrender these areas.

Meanwhile World Bank and other donor supported programmes have been actively supporting titling programmes on village lands but which unfortunately once again focus upon house and farm entitle- ment, and largely for the purposes of collateralisation. As of old, such programmes ignore collective lands within Village Land Areas, despite these being self-evidently most at risk of wrongful appropriation. Pri- vate farm titling also tends to encourage a flurry of expansion into vil- lage communal lands.30

A further threat to communal properties derives from the wildlife sector. Unlike the forestry sector, the values of wildlife for hunting con- cessions have been so high over the last two decades that the Wildlife Department has exercised little constraint in allocating swathes of cus- tomary property (village land) in northern Tanzania to foreign interests, on the grounds that the state, not communities, owns wildlife. This is a strategy embedded in the Wildlife Policy 1998 and 2002 Regulations. The vast village domains of pastoralists have been primarily affected, adding to existing threat from the National Livestock Policy 2006. This echoes the government’s plan to sedentise nomads, bringing their pro- duction under ranching schemes (Odgaard 2006), an attempt last tried and failed in the 1960s and 1970s.31 Needless to say, many of the pas- toral lands are wooded, as are many integrated pasture and woodland areas in other drier parts of the country. Through the allocation of hunting concessions by the Wildlife Division, rural communities in the north of Tanzania have lost literally millions of prime collectively owned property, even though in law it is only control over the wildlife that they have lost.

The Role of Village Forest Reserves in Customary Land Security Today

It is into this pool of vulnerability of collectively owned customary properties that the Forest Act’s accessible construct of Village Land and Community Forest Reserves shows its exceptional utility. As law and policy currently stand, and/or are interpreted, this represents the most tangible mechanism through which rural communities may clarify and entrench their customary possession and jurisdiction of common lands.

At a minimum, declaration of Village Reserves removes large areas of community land from potential designation as ‘unused or unoccu- pied’, demonstrating these as purposely unoccupied. Creation of Vil-

lage Reserves additionally triggers precise inter-community boundary definition within previously broad wooded boundary areas and which would have run the risk of being declared owned by neither commu- nity and made directly vulnerable to Government claims that these lands are unowned or unused. Declaration of Village Land Forest Re- serves has for some time enabled many communities to re-align boundaries where incautious earlier mapping of Village Land Areas by district authorities had deliberately or inadvertently removed their col- lective properties.

Still, the lack of an explicit land law construct through which a com- munity is not only encouraged but bound to register its communal assets as collective private property may be seen as a dangerous legal lacuna for communities. Until such a mechanism is provided rural communities in Tanzania are quite right to look to the village forest re- serve construct to help secure these resources.