Ultimately, neither the Shivji Commission’s nor McAuslan’s approaches to separation of powers and checks and balances were adopted for the local level of land court. Both village and ward tribunals remain accountable to local district councils under the President’s Office Regional Administration and Local Government (TAMISEMI). This therefore continues the historical fusion of judiciary with executive at the local levels of land dispute resolution. Each of the five ward tribunals I visited was convened within the small ward office, thereby physically situating it in the same building as the office
of the ward executive officer and other executive officials. Ward tribunal members are nominated by their villages and appointed by the ward committee.148 In the five ward tribunals I visited it was common for the members to have held previous political roles, such as balozi (ten-cell leader)149 or village council member. Some had worked as primary court assessors. Some female members had been secretaries for UWT. CCM affiliation was common and arguably continues a degree of the politicisation that existed in arbitration tribunals in the past.
Whilst district councils are responsible for supervising, training and remunerating ward tribunal members as well as providing funding for the tribunals themselves, in practice none of the ward tribunals or their members received funding or remuneration from their local district council, and members had received quite limited training for their role. The tribunals typically sat once or twice a week, depending on the workload of the tribunal and availability of members. Lack of remuneration was a common complaint from members of all the ward tribunals I visited, which they felt was made worse by the statutory disqualification of civil servants from ward tribunal membership.150 Whilst this restriction serves to preserve separation of executive and judicial powers in the office of the ward tribunal member, some members considered that this unfairly penalised them from seeking employment in the public sector when they were not being paid for their tribunal work.
In contrast to regulations which provide for fixed court fees in the DLHT151 there are no equivalent national regulations for ward tribunals to charge fees in relation to proceedings under the Land Acts. As such, it was common practice for ward tribunals to set their own fees to charge litigants. In 2009 5,000 Tsh appeared to be a standard figure for file opening. One woman I met listed to me the total costs she had incurred in her Ward Tribunal claim: a 5,000 Tsh file opening fee, 35,000 Tsh for 7 witness summonses, 70,000 Tsh for the site visits and 20,000 Tsh for copies of the file to take to the DLHT. Other claimants quoted similar figures for their own cases. Site visits were usually the single highest cost in Ward Tribunal proceedings. In one case I observed
148
WTA s.4(1)(a).
149
The role of the balozi is discussed in chapter 4.
150
WTA s.5(1)(c).
151
Land Disputes Courts (District Land and Housing Tribunal) Regulations (G.N. No. 174 of 2003) (DLHT Regulations) para. 3(1) and First Schedule.
both parties were required to pay 110,000 Tsh each for the site visit. In addition to the fees that tribunals set for the conduct of a case some tribunals imposed fines on parties who failed to attend (typically 20-50,000 Tsh) or showed disrespect to the tribunal during proceedings (60,000 Tsh). At one tribunal which normally heard cases on a Saturday, litigants would be charged an additional fee if they wanted their case to be heard on a weekday.
The ethics of ward tribunals charging fees in this way is not a straightforward issue. Given the lack of local government funding, members can only meet their administration costs and pay themselves by charging the litigants who appear before them. In their 2009 study of customary dispute resolution processes in Kisii, Kenya Henrysson and Joireman similarly found that litigants in land tribunals were expected to pay unofficial transport costs and lunch for officials because salaries were insufficient. Whatever the justification for charging these fees the high costs of bringing a claim represents a significant hurdle for claimants who lack access to funds. Moreover, the fees are considerably higher than the fixed fees set by regulations in the DLHT. For example, in 2009 the statutory fee to issue an application for execution in the DLHT was 2,500 Tsh. It is therefore somewhat ironic that ward tribunals, which are intended to be accessible to local people, are financially speaking the least accessible level of dispute settlement in the land tribunal system.
The DLHT is also an underfunded institution. However, unlike ward tribunal members DLHT chairpersons are salaried law graduates, appointed by the Ministry of Lands and Human Settlements Development – the department responsible for this particular level of the tribunal hierarchy. They are assisted by remunerated lay assessors, with a role similar to assessors in the primary court. As Moore has noted, the presence of elders in the contemporary legal system echoes the pre-colonial role of headmen (washili) in local dispute settlement (Moore 1986: 148). In the context of the DLHT - and appeal hearings in the High Court Land Division that originate from the ward152 - their place alongside legally qualified chairpersons and judiciary appears intended to underscore the place of local customary practices and community conceptions of justice in Tanzania’s plural legal system. In practice the majority of Arusha’s DLHT assessors whom I met were not originally from Arusha and had held former careers as army
152
officers, business people, union and public sector workers. They explained to me that their knowledge of local customary practices (as the Regulations require them to have)153 came from living amongst the local Arusha population for many years.
The establishment of a specialist High Court Land Division reflects the significance of land issues and volume of land disputes in Tanzania. The High Court (and Court of Appeal above it) is located exclusively in the judicial branch of government; however, since its creation under the Land Acts the High Court Land Division has suffered from a severe shortage of judges and underfunding from the Ministry of Constitutional Affairs and Justice. During my fieldwork year there were just four High Court Land Division judges for the whole of Tanzania. Based in Dar es Salaam, the four judges travel to regional sub-registries throughout the country to hear cases. This means that judges are not locally resident in most of the areas they visit and they spend very limited time in each place. A judge would visit Arusha two or three times a year for approximately a two-week period, funding permitting. This has significant implications for how professionally qualified judges seek to understand and apply local customary practices, in contrast to the approach of tribunals operating at the village and ward level, which are staffed by local elders from the communities they serve. I explore these differences further in chapter 5.
A matter upon which NALAF and GLTF were agreed was the importance of female representation in land dispute resolution. There is today a significant female presence in the Tanzanian judiciary, including the Court of Appeal and High Court,154 although gender equality at all levels of court has yet to be achieved. During my fieldwork year the personnel of Arusha’s DLHT comprised one male and one female chairperson, and two out of the six assessors were women. Statute requires that ward tribunals must comprise not less than four or more than eight members, of whom three shall be women.155 VLA also stipulates that three out of seven village land council members must be women.156 In the wards I visited however, none of the tribunals were attended by all the appointed members and none had more than two active female members. It
153
DLHT Regulations para. 33(1)(a).
154
As at April 2012, 26 out of 68 High Court judges and 4 out of 15 Court of Appeal judges in Tanzania were women (Source: www.judiciary.go.tz – accessed July 2012).
155
LDCA s.11 and WTA s.4.
156
was quite common for ward tribunals to proceed to hear cases without a proper quorum of half the total members, rendering their decisions liable to being held void on appeal. Some female members expressed to me that the unpaid two days a week commitment was particularly onerous as they had small businesses, dependent relatives and other household responsibilities to attend to.
Despite these problems, the call for greater participation by women at all levels of the court system is actively being addressed in Tanzania and female presence amongst the judiciary compares favourably with many other countries. My impression from observing ward and DLHT proceedings in Arusha was that women tribunal members were respected by their male tribunal colleagues and were active participants in the adjudication process. Two female members I met held the position of chairperson on their village land council and ward tribunal respectively. It is difficult to make a social- scientific assessment of the impact of greater female representation on substantive decision-making in land matters or on women’s access to justice. However, from my informal conversations with female ward tribunal members and litigants at the ward level, it appeared that the presence of female members made some women litigants feel more comfortable in approaching these local levels of tribunal for assistance.
3.5 Conclusion
The Land Acts of 1999 were an important landmark in the progressive realisation of women’s property rights in Tanzanian law. However, my contention is that they also represent a missed opportunity for a more fundamental reconfiguration of the way in which gender and land tenure relations are constructed through statute. In chapters 2 and 3 I have focused on the gendered and intergenerational aspects of customary practices and statutory laws on land tenure, matrimonial property and inheritance in order to highlight the inseparability of these three areas of law in family contexts. Yet, with the passing of the Land Acts these three areas of law have not been consolidated and are now glaringly inconsistent on issues of gender equality. There have been gender progressive developments concerning spousal land rights under LMA and the Land Acts. However, laws of succession remain unchanged and most cases are determined according to ‘customary law’. This means that customary practices of land tenure which discriminate against female inheritance remain recognised in estates
matters heard in the ordinary courts, whilst land courts have jurisdiction to ‘trump’ discriminatory customary practices to give effect to women’s equal rights to land in disputes heard under the Land Acts.
The creation of a separate system of land courts was an important priority for both the Tanzanian government and the Shivji Commission to remedy a number of deficiencies in the administration of justice in land cases. However, this has also served to amplify the fragmented statutory approach to land in family contexts. Since matters concerning the division of matrimonial property and succession remain under the jurisdiction of the ordinary courts, the notion that land courts have exclusive jurisdiction in land disputes is something of a misnomer. As my fieldwork findings illustrate in the chapters to follow, this is shown to be a recipe for confusion and delay where claims to land between spouses are made to a court that lacks the relevant jurisdiction. It also highlights a substantial legal lacuna in statutory protection of a wife and her interests in land within a subsisting marriage.
Lastly, the concentration of power over land ownership and dispute resolution in the hands of the executive by successive administrations in Tanzania has proved to be a highly effective way of retaining political power and social control over land matters and a recipe for corruption. This executive power has been retained and to some degree strengthened at the local level of village and ward tribunal under the current land court system and the concentration of power in the position of the WEO in particular. As will be discussed, this location of the ward tribunal within local government carries significant implications for the power dynamics of local land disputes. Where such power is abused, it also raises challenges for access to justice if executive and judicial spheres become further enmeshed with social power relations in the family and community.