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CHAPTER EIGHT

Natural Resources sector legislation

Land laws

There are three main clusters under the land laws and environment:

1) Terrestrial environment,
2) Aquatic environment
3) Atmospheric environment

Under the Land Acts, all land in Tanzania is public land vested on the President as trustee for
Tanzanians as the beneficiaries. Why land in Tanzania is public land? It is on historical reasons
that Tanganyika was a Mandate Territory under the League of Nations, which declared that land
is a public land vested under the League of Nations, and then under the British rule, the land was
vested to the Governor. This public land is classified under the Land Act, Cap 113 to include the
following:

1. General land
2. Reserve land
3. Village land

The most important category for the environmental management is the reserved land. This is
provided for under section 6(1) of the Land Act

a. The land falling under the Forests Act, 2002 so here we deal with all reserves;
b. All lands under the National Parks Act;
c. All lands under the Ngorongoro Conservation Area;
d. Wildlife Conservation Act;
e. Marine Parks and Reserves Act;
f. Land designated under the Town Council Ordinance;
g. Recreational grounds under the Public Recreation Act;
h. Land within the natural drainage system e.g. rivers;

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i. Land under Land Acquisition Act for public purposes;

j. Land declared as hazardous land by the Minister under the Land Act.

Section 7(1) of the Land Act, provides for the hazardous land. It includes mangrove swamps
area, wetlands (preserve water and flood control), land designated for dumping wastes, land
within 60 meters from the river bank, land on slopes exceeding certain gradient, and land
specified by appropriate authorities because of its fragile nature.

There are also conditions attached to the Right of Occupancy under the Land Act. Some of
these conditions deal with environmental management.

Under the Village Land Act, the hazardous land is covered as well. These parcels of land
under VLA are known as hazard land, and the list is the same as that provided for under the
Land Act. The VLA imposes conditions on use of customary Right of Occupancy. It
emphasizes that there must be sustainable utilization of the land.

Marine Parks and Reserves

They straddle two regimes i.e. terrestrial and aquatic environment. In Zanzibar, it is known as
the Underfisheries Act, Sanctuaries in Kenya and Marine Park and Reserve in Tanzania
Mainland.

In Tanzania, the Marine Parks and Reserve Act was part of the Fisheries Act until 1994 when
it was separated by the enactment of the specific legislation to deal with marine parks and
reserves.

Zanzibar has more than Mainland Tanzania i.e. marine parks, section 9(1) of Marine Parks
provides for creation of marine park/reserve , be declared by resolution of the Parliament,
followed by Notice in Government Gazette. The whole process is consultative.

Marine Park is an area of natural, scenic and other

Marine Park and reserve is a management area i.e. provides for protection and permits access
to allow public view/enjoy

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Conditions differ in reserve and Marine Park; in a park conditions are stringent while in
reserve fewer conditions are put and people can live there. Section 10 provides for the
objectives of the establishment of marine protected areas.

1. The most important one is to protect, conserve and restore the species and genetic
diversity in an ecosystem.

• Manage marine to promote sustainability of resources use

• In case of Tanzania, it is also to ensure that villages and other local users are involved in
ALL PHASES of the planning, development and management of that Marine Park and
Reserve.

2. To ensure that they share the benefit of the operation;

3. To ensure they are given priority in resources use and in economic opportunity
4. Promote community oriented education concerning conservation and sustainable use of
marine resources

Important in the MP&R Act

1. Creation of the revolving fund whose management include people of the area. People are
involved
2. Best law to deal with environmental management. It provides for the EIA
3. The first Act to provide for appeals
4. MP&R Act accommodates a new approach for legislating i.e. involve communities not as
beneficiaries but managers and planners. People are involved not participate. This lacks
in many resource legislations.

The Forest Act, 2002

The Forest Act 2002 is articulating about various matters on the conservation, utilization and
protection of forests and forest resources in Tanzania Mainland.

Section 4 of the Forest Act deals with classification of various types of forests in Tanzania.
These are: -

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a. National forests including forest reserves and nature forests reserves and forests in
general land;
b. Local Authorities forests including the local authority forest reserves and forests on
general land;
c. Village forests including village land forest reserves, community forest reserves created
by out of the village forests and forests not reserves on the village land whose
management is vested on the village council.
d. Private forests

Section 11 of the Act deals with forest management plans that may be outline of forest
management plans, a detailed forest management plan, a village forest management plan or a
private forest management plan.

A forest management plan shall define the management objectives by which the forest manager
shall use its best endeavours to achieve the sustainable management of the forest resources over
the period for which the plan has been prepared.
Section 18 of the Forest Act deals with the EIA requirements for certain activities that are taking
place in the forest reserves, private forest reserves or sensitive forest areas including watershed.
It is the duty of the proponent of the project/activity developer to carry out the EIA. The
activities that require EIA within the forest reserves include
a. Commercial logging and forest industry development that exceed five
hectares;
b. mining development;
c. Road construction and laying of pipelines;
d. The construction of dams, power stations, electrical and telephone
communication installations;
e. Buildings or group of buildings other than those for forest management;
f. Agriculture, aquaculture or horticultural development in an area exceeding
five hectares.

Section 22 of the law vests the powers to the Minister to declare any area other than the village
conserved area as either national forest reserve or local authority forest reserve. The

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consultations of the public as well as the notice publication of the declaration prior to taking
effect of the order are matters of great concerns and they are mandatory.

Customary rights and other rights of the stakeholders on the forest reserve land must be
investigated before the area is declared to be a forest reserve. The stakeholders are entitled to fair
and full compensation for their infringed rights as a result of declaring that part of the land as
being forest reserve.

Section 49 of the Forest Act stipulates about matters that are relating to permits to be issued for
activities that are done in the forest reserves. These permits are required for:
a. Timber extraction;
b. Gather and taking of any specified forest produce;
c. Protected plants, pluck, pick , extract, or take part of the plans so protected;
d. Erect buildings and other structures; construct roads, bridges, railways, run ways, etc;
e. Camping and tourism facilities;
f. Saw mills operations and industrial processes and machinery;
g. Enter and hunt or fish;
h. Cultivation or grazing of livestock and other of the like.
There is stop order where there are any breach of the terms of a permit or any condition attached
thereto consists of or includes cutting down, felling, damaging, digging up, removing any tree,
forest produce protected wild plant for purposes of sale, barter, profit or for use in any trade,
industry, commercial or research undertaking, the Director may issue an order, to be known as a
stop order. This is covered by section 57 of the Act.

Part VII deals with trade in forest produce. Section 58 restricts any person from exporting, or
enters into agreement to export of any timber or other forest produce unless he has a valid export
certificate. Also the export of timber or other forest produce must be through the places or ports
designated for that purposes and published through a notice in a gazette.

The Wildlife Conservation Act, 2009

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The long title of the Act reads as “an Act to make better provisions for the conservation,
management and protection of and sustainable utilization of wildlife and wildlife
resources/products.

Section 4(1) of the Act declares explicitly that all animals in Tanzania shall continue to be public
property and remain vested on the President as a trustee for and on behalf of the people of
Tanzania.

Under paragraph 2 of Section 4 of the Act, the law takes cognizance of private ownership of
some animals in private zoos, wildlife farming and sanctuaries/ranches. It states that there may
be individuals who are vested with private ownership of the wild animal in case they obtained
the animals lawfully vide licences and permits. Also individuals who owned wild animals prior
to enactment of this law will continue to be recognized as lawful owners of those wildlife
resources.

The objectives of the Act are well articulated in section 5 of the Law. They include protect and
conserve areas with great biological diversity and wetlands, protect and conserve wildlife
resources and its habitats in game reserves, wetland reserves, game controlled areas, wildlife
management areas, dispersal areas, migratory route corridors etc; foster sustainable and legal use
of wildlife resources and prevent illegal hunting etc. Section 6 of the Act emphasizes on the need
to promote the Wildlife Policy of Tanzania.

Part IV of the Act deals with Wildlife Protected Areas and General Restrictions. Under this part
of the law creation of various wildlife protected areas is addressed. Section 14 empowers the
President to declare an area to be a game reserve. This is made through an order published in a
Gazette after consultation s with the local government and authorities.

Section 15 prohibits and restricts entrance into game reserves to all persons. One must obtain a
permit from the Director of Wildlife to enter a game reserve lawfully.

Section 16 deals with the powers of the Minister to declare areas designated as Game Controlled
Areas, wetland reserves and wetland areas. This requires prior consultation with local authorities
for the GCAs, and the Minister responsible for Environment before making regulations

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governing the establishment of sustainable management wetland reserves and wetland areas.
Also the Minister may declare some areas to be a species management area (section 23) that
intends to protect any animal or class of animals or their habitats, national game under section 25
of the Act. Additionally, the Minister may designate and make regulations relating to wildlife
corridors, dispersal areas, buffer zones and migratory routes under section 22.

Carrying and possession of fire arms, bow, arrow or any other weapons in the game reserve is
restricted unless the person carrying the same has obtained the written permission from the
Director of Wildlife prior to entrance with the weapon in the game reserve as per provisions of
Section 17.

All natural resources in the game reserve or wetland reserve are protected against bush or grass
fire, felling, or cutting of tree, shrubs, bush grass, vegetation as well as grazing livestock (section
18). Also hunting in a game reserves, game controlled areas and wetland reserves is not
permitted under section 19 of the Act unless one gets a licence (permission in writing) from
relevant authorities.

Other prohibitions include mining activities, collecting sands, crop cultivation, carrying weapons
/possession of weapons; digging trap, net, lay, snare or use of other devices capable of capturing
, killing or wounding an animal. Section 20 (1) and (2) illustrate these restrictions under the Act.
Under subsection 3 of section 20 the only mining activities that are permitted is prospecting or
mining of oil, natural gas or petroleum upon conducting EIA, paying protection costs, paying
concession fees and government being the initiator of the undertaking.

The Act also deals with declaring ‘a closed season’ under sections 27 and 28 of the law where
there are prohibitions, restrictions or regulation on hunting, killing or capturing of any animal or
class of animals in an area for specified periods.

Part VI of the Act deals with general management measures. These include the management
plans for each established protected area i.e. national parks, game reserves, game controlled
areas, wetland reserves etc. Section 34 of the Act deals with the management plans.

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Environmental Impact Assessment is also required to be conducted for every activity that
involves physical development in a wildlife protected area, wildlife mgt area, the buffer zones,
migratory route or dispersal areas. This requirement is covered by section 35 of the Wildlife
Conservation Act.

It is explicitly stated that no such development shall be commenced until the EIA certificate is
issued by the Minister responsible for environmental matters. These development activities
include mining development; road construction and laying of pipelines; semi or permanent
establishment; constructions of dams, power stations, electrical and telephone communication
installation and other similar development.

Section 37 is dealing with environmental audit and monitoring for activities that were undertaken
prior to the introduction of requirement of conducting the EIA. At this stage the developer of a
project/implementer of the activities are required to take necessary measures that are taking into
account the need to conserve environment when they are implementing their activities.

The powers to grant the hunting block to applicants is vested to the Minister under section 38 of
the Act. The grant is to subsist for period of five years renewable on satisfactory performance.
Normally it is granted upon the advice from the Hunting Block Allocation Advisory Committee.
The cancellation of the hunting block grant in any case must be preceded by the requirement of
fair hearing.

Under section 40 the Act prohibits hunting animals without licences. The hunting should only be
for those animals specified in the licence. Hunting animals which are not enumerated in ones
licence is violation of the law and attracts punishment under the Act.

Section 45 of the Wildlife Conservation Act provides for access of wildlife by traditional
community. This is done through a declaration or order by the Minister published a Gazette.

Also there are prohibitions of capturing animals without the capture permits under section 50 of
the Act. This relates to animals for providing zoological garden specimen; educational, scientific
or cultural purposes; specimen for commercial purposes etc. In order for someone to capture the

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animals he must get the permit that normally is issued under section 51 and subjected to several
conditions under the law.

Hunting of all animals without written authority is prohibited under section 55 of the Act; and
specifically killing or hunting young animals or female pregnant animals is prohibited even for
those who are having hunting licences unless their respective licence have expressly stated so.
This prohibition is articulated under section 56 of the Act.

Issues relating to wildlife ranching, farming, breeding and sanctuaries establishments are covered
by section 89 of the Act.

Part XIV of the Act deals with protected species and international obligations. Section 94 of the
Wildlife Conservation Act, 2009 states to the effect that in implementation of the international
obligations under treaties to which Tanzania is a signatory there are several matters can be done.
These include declaring any internationally protected species as protected species under our law;
initiating legislative measures and identifying appropriate measures necessary for the
implementation of the agreements.

Part XV deals with international trade in wildlife species and specimens including those
governed by CITES. Under section 95 any trade in contravention of CITES provisions is
prohibited.

The Water Resources Laws

This caters for water found in terrestrial environment not that of aquatic (marine) environment.
Water is part of the environment. Specifically here we are addressing the utilization of water as a
natural /environmental resource.

Water resources have major impact in health of environment and at the same time have high
potential of degradation of the environment. In water utilization we deal with the quality of water
and the discharge of effluents in water.

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Traditionally in water utilization, domestic and industrial uses were the main focus. Currently the
scope has been expanded as water also is required for environment e.g. trees, wetlands.
Livestock also need water.

Most of water in Tanzania is surface water- drawn from rivers though in some areas they use
acquifer water. In most urban areas there is still discharge of waste water uncontrollably.

The main pieces of laws dealing with management and utilization of water resources are (a) the
Water Resources Management Act, 2009 and (b) the Water Supply and Sanitation Act, 2009.

The Water Resources Management Act, 2009 is the main piece of legislation that covers for most
issues relating to water in Tanzania.

• Section 5 of the Act deals with the principle of sustainable water resources management.
It recognizes that water is one of the scarce resources that must utilized wisely. These
principles include precautionary principle; polluter pays principle, the principle of
ecosystem integrity, the principle of public participation in the development policies,
plans and processes for management of water resources, the principle of international
cooperation in management of environmental resources shared by two or more states, and
the principle of common but differentiated responsibilities.
• Section 6 points out on the need to promote the National Water Policy of 2002 and states
that preference in allocation of water rights must be for domestic purposes,
environmental resources/reserves, and socio-economic activities depending on the
availability of water resources.
• There is a general duty to protect water resources. This duty is imposed on every resident
of Tanzania Mainland. It is provided that every person residing in Tanzania Mainland
shall have a stake and duty to safeguard and protect water resources and to inform the
relevant authorities of any activity that may affect the quantity and quality of water
significantly. This is in accordance with section 7 of the Act.
• Section 8 of the law mandates the Director of Water Resources to carry out Strategic
Environmental Impacts Assessment where a major water project is planned. Also the
requirements of conducting EIA are articulated thoroughly under section 9 of the Act for

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any proposed development in water resources area, or watershed whether the

development is proposed or implemented by person or organization in the public or
private sector. The processes of EIA must be in accordance with the requirements set out
in EMA.
• Part III of the Act deals with ownership and control of water. It states that all water in
Tanzania belong to public vested on the President as a trustee for and on behalf of
citizens. The management of water resources is through designated institutions. Thus the
public trust doctrine in water resources is reflected in section 10 of the Act.
• Section 11 of the Act deals with the right to use water for domestic purposes. Individuals
who are using water for domestic purposes do not need to get permission except for
construction of water works. Generally the power to confer right to use water from any
water resource is vested on the Minister. The owner or occupier of land has a right to
construct any waterworks for rain water harvesting or for recycling the used water other
than in the river, stream, abstract and use water so conserved or recycled for domestic
purposes as per s.12.
• Part VII deals with Water Abstraction and Use. Under section 43 all uses of water save
for domestic use require the Water Use Permit. This include when a person constructs a
dam, stores, diverts, abstracts or uses water from surface or underground water source or
for constructing or maintaining any work. The Water Use Permit must consider needs of
water for non-abstraction uses or for environmental flow maintenance requirements. It is
an offence to use water for purpose that is not domestic without or in excess to the
authorized amount in the Water Use Permit (S.44 of the Act).
• There are conditions attached to or implied in Water Use Permit. Section 48 requires that
the holder of Water Use Permit must ensure proper environmental management by :

a. Not causing or allowing any water to be polluted;

b. Prevent any damage to sources to which water is taken or it is discharged after
use;
c. Ensure efficient use of water, and
d. Observation of conditions and regulations made under the Act.

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• Ground Water Use also is clearly regulated under the Act. It is the duty of a person to
apply for Ground Water Permit in order for him/her to construct, sink, enlarge or deepen
the well or borehole in the Ground Controlled Areas. Failure to apply for this permit is a
criminal offence. Also the distances between one and another well or borehole must be
specified in accordance with regulations (Sections 54-56 of the Act). There is a
mandatory duty/obligation under section 59 to seal a well or borehole not in use in order
to prevent pollution and injury to other persons and notify the Basin Water Board for
cancellation of the Ground Water Permit.
• Section 58 permits /gives a person who holds the special mining licence or prospecting
licence the right to use water. He is only subjected to the Basin Water Board directions
regarding protection or disposal of water found in the area.
• Section 63 deals with the Discharge Permits where a person who wishes to discharge
effluents from agricultural, commercial, or industrial source or any sewerage works or
trade waste systems must apply to the Basin Water Board. It is an offence to cause or
allow waste or effluents to come into contact with any water, to be discharged directly or
indirectly into water, water to be polluted by waste effluents. The Principle of Polluter
Pays shall apply in addition to FINES imposed under this section as per section 64(4)(a)
of the Act.
• The Minister is empowered by section 72 to declare for water that is needed /required for
a public purpose. These include supply in the city, municipal, township etc, for fire
fighting, providing for disaster and protection of ecosystem.
• General conditions for Water Use and Discharge Permits are covered by section 74 of the
Act. Other matters covered by the law include the water quality standards, water users
associations, water resources management plans, dam safety and flood management and
pollution of water prohibitions.
• Note: Institutions that are established by the law for water resources management include
the Minister (s.13); the Director of Water Resources (s. 15); National Water Board (s.
20); the Basin Water Boards (s. 22); and the Catchment and sub-catchment Water
Committees (s. 29).
• Current Water Basins include the Ruvu/Wami Basin; Lake Victoria Basin, Lake
Tanganyika Basin, Lake Rukwa Basin, Ruvuma River Basin, Lake Nyasa Basin; Pangani

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Basin, Internal Drainage Basin-including lake Eyasi system, Lake Manyara, Bubu etc
and Rufiji River Basin.

The Water Supply and Sanitation Act, 2009

This deals with sustainable management and adequate operation and transparent regulation of
water supply and sanitation services, to provide for the establishment of water supply authorities
and related matters.

In respect of environmental management Part XIV which deals with Offences and Penalties is
relevant.

a. It is an offence for damage or interference with water works, any sewer, sewerage
treatment plant, or other assets (s. 47) and it attracts fine btn 50,000 shillings to 500,000
shillings.
b. Misuse of water or wasting water passing into, through or upon or near any premises
from water works as per section 48.
c. Fraudulent measurement or causing or altering any appurtenances to avoid accurate
measurement in meter etc. the offender may be liable to fine not exceeding 500,000
shillings and expenses for rectifying the meter or obtaining new as a civil debt through
summary suits-section 49.
d. Using water supplied for any other purposes than those which the water is supplied for
(section 50) ; bathing or washing in the water work is prohibited under section 51; and
water pollution through depositing any materials or liquid is prohibited under s.52.

Mining Laws/Mineral Resources Laws and the Environment

The Mining Act 2010

In year 2010, the government of United Republic of Tanzania decided to enact a new law to
regulate the Mining sector. This law was passed by the Parliament under the Certificate of
Urgency thus the Parliamentarians and citizens i.e. general public had no opportunity to discuss
in details and reviews, consultations were not well encompassed in the process.

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Section 10 of the law provides for the Minister’s powers to impose conditions on the mining
licences to include environmental considerations, on behalf of the state. He can enter into
development agreement with mining licence holder on behalf of the United Republic and the
agreement is binding to the State. The validity of this kind of agreement is for the whole period
for which the mining licence exists (s.11). There is a requirement of periodically performance
reviewing the agreement after every five years to verify if the holder of mining licence complies
with the conditions including those relating to environmental management. (s.12) of the Act.

Generally the following cluster shows the Sectoral Environmental Laws in Tanzania

1. Extraction and utilization of mineral resources e.g. the Mining Act, 1998 repealed and
replaced by the Mining Act, 2010; the Petroleum Act, 2008 repealing The Petroleum
(Conservation) Act, 1981.
2. Water Quality Management, Regulation and Control e.g. The Water Resources
Management Act, No. 6 of 2009 repealing the Water Utilization (Control and Regulation)
Act, 1974; Tanzania Bureau of Standards Act, 1975; and Water Supply and Sanitation
Act, No. 5 of 2009 repealing the Water Works Act, 1981..
3. Land use control management and planning e.g. The Country Planning Act,
4. Conservation of Fauna e.g. The Wildlife Conservation Act, 2009;
5. Conservation of Flora e.g. the Forest Act, 2002; the Fires Act; the Marine, Fisheries and
Coastal Zones Act, ; the Fisheries Act, 2003; the Marine Parks and Reserve Act, 1994
and the Exclusive Economic Zones Act, 1989.
6. Pollution control and regulation e.g. the Explosives Act, 1963; the Tanzania Bureau of
Standards Act, 1975; and the Pharmaceutical and Poison Act
7. Antiquities e.g. the National Museum Act; the Antiquities Act, 1964 and the Protected
Areas and Places Act, 1969.
8. Transportation
9. Merchant shipping
10. Human health

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CHAPTER NINE

POLICY FRAMEWORK FOR ENVIRONMENTAL AND NATURAL RESOURCES

MANAGEMENT

1. National Environmental Policy, 1997

NEP is divided into Five Chapters.

(i) Chapter I

Is an introductory chapter that deals with meanings of various concepts including the term
environment, articulate about international environmental law principles like the sustainable
development and intergenerational equity, outlines the Tanzania’s participation in the
international environmental issues/conferences like Rio Conference or the UN Conference on
Environment and Development.

It points out for the role of Environmental Policy on execution and implementation of number of
strategic functions: Paragraph 8 of NEP states inter alia, that it shall deal with development of
unifying set of principles and objectives for integrated multi-sectoral approaches to address the
totality of environment,; fostering government wide commitment to integration of environmental
concerns in sectoral policies, strategies and investment decisions, and development and use of
sectoral policy instruments which can do most to achieve this objective; creation the context for
planning at multi-sectoral level to ensure systematic approach, focus and consistency.

(ii) Chapter two

This deals with the state of the environment in Tanzania. The provisions of Paragraph 11 of the
NEP point out about major environmental problems that require urgent attention. These include
land degradation, environmental pollution, loss of wildlife habitats and biodiversity,

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deterioration of aquatic ecosystems, deforestation and lack of accessible quality water for urban
and rural inhabitants.

The policy articulates reasons for the current deteriorating state of environment (paragraph 13)
and points out the adverse impacts that environmental problems have on the quality of human
life and health. It also elaborates about the government efforts towards eradicating these
environmental problems.

(iii) Chapter Three

Paragraph 17 of the NEP explicitly provides for motive behind the policy as seeking to provide
the framework for making fundamental changes that are needed to bring environmental
considerations in decision making in Tanzania. Also to provide for policy guidelines, plans and
give guidance to the determination of priority actions and provides for monitoring and regular
review of policies, plans and programmes. The overall objectives of the NEP are well stated
under paragraph 18. These are:-

a. To ensure sustainability, security and equitable use of resources for current and future
generations;
b. To prevent and control degradation of land, water, vegetation and air which constitute our
life support system;
c. To conserve and enhance our natural and man-made heritage including biological
diversity;
d. To improve the condition and productivity of the degraded areas to ensure that they are
safe, healthful, productive and aesthetically pleasing surroundings;
e. Raise public awareness and understanding on environment and development linkages and
promote individual and community participation in environmental action;
f. To promote international cooperation on environmental agenda including implementation
of bilateral regional and global environmental treaties.

Paragraph 20 points out that the focus of NEP is aiming at satisfaction of basic needs and
protection of environment in the cause of development.

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Land tenure is addressed under paragraphs 26 and 27 i.e ownership of land and land resources,
access to and the right to use them are of fundamental importance for equitable and balanced
development as well as to the level accorded to environment.

Paragraphs 28-30 deal with technology in the process of exploitation, processing, utilization of
natural resources and its resulting environmental impacts.

Paragraphs 31-33 address the issues relating to biodiversity protection. It is clearly stated that
Tanzania is one of 14 biodiversity ho pot countries in the world and it is endowed with
biodiversity due to diverse ecosystems, topography and climate.

Public participation and education are addressed, e.g paragraph 34 it is stated that environmental
management must be everybody’s responsibility, paragraph 35 states that environmental issues
are best handled with participation of all citizens at relevant levels while paragraphs 34-39
expound the public participation, awareness, the right to information on environmental matters,
environmental education etc.

The roles of private sector and NGOs are well articulated under paragraphs 40-41 of NEP.
Similarly the role of women towards environmental management is addressed under paragraphs
43-44 .

Aspects of environment in various sectors are also addressed in the NEP. These include:-

a. Paragraph 46 deals with agricultural sector.

b. Livestock under Paragraph 47 e.g conservation and improvement of grazing lands and
preservation of feed resources, management and control of grazing lands, and promotion
of rotational grazing, management and control of migratory livestock etc.
c. Water and sanitation under paragraphs 48-49.
d. Environmental issues on mining sector are also covered under paragraphs 53-54. It
emphasizes on prevention, reduction, control and elimination of damage and
minimization of risk from generation, management, transport and disposal of hazardous
wastes and other wastes and emissions.

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e. Paragraph 58 relates to wildlife resources. It states that these resources must be protected
and utilized in a sustainable manner through careful assessment of natural heritage in
flora and fauna fragile ecosystem, site under pressure and endangered species, with
participation of and benefits to the local community. It encourages EIA to minimize
adverse environmental impacts. Also it encourages game ranching and captivity breeding
for certain species.
f. Forestry resources management is articulated under paragraph 59 of NEP. The main
objective on the forest resources is the development of sustainable regime for soil
conservation, and forest protection with clear understanding on the link between
desertification, deforestation, fresh water availability, climate change and biological
diversity. It avers that afforestation and reforestation programmes should be promoted;
proper management and law enforcement over all public land should be practiced.
g. Other aspects covered include health (paragraph 50), transport (par. 51), energy (par. 52),
human settlement (par. 55), industry (par. 56), and tourism (par. 57).

(iv) Chapter Four

This part of the NEP articulates about the instruments of environmental policy. These include:-

a. Environmental Impacts Assessment that is based on the precautionary, anticipatory and

preventive approaches which are economical measures and most effective in achieving
environmentally sound development (paragraphs 63-67).
b. Environmental legislation both framework and sectoral legislation are underlined as an
essential component of effective environmental management and improvement of quality
of life –paragraphs 68-72.
c. Economic instruments under paragraphs 73-76.
d. Environmental standards and Indicators paragraphs 77-80.
e. Precautionary approach is also articulated as one of the instruments under paragraph 81
of NEP; and
f. International cooperation on environmental matters is clearly dealt with in paragraphs 82-
85 of the NEP.

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(v) Chapter Five

In this chapter issues relating to the Institutional Arrangement in environmental matters are well
addressed. It explains the existing institutional framework and the aspects of coordination and
cooperation between different bodies on environment to avoid overlapping and conflicts in the
whole process of environmental management. The institutional arrangement include:-

i. The Ministry responsible for environment which shall have overall policy exercise,
planning and implementation oversight mandate on environmental matters. The
Ministry’s function must form basis for effective inter-ministerial cooperation and
coordination thus must be reflected in the Framework legislation and sectoral legislation
–paragraphs. 88-93;
ii. Lead Ministries –these are ministries dealing with specific environmental law aspects like
public health, sewerage disposal, and water pollution and control. These shall represent
critical constituency of the Ministry responsible for environment as per paragraphs 94-96
of NEP;
iii. Advisory bodies –paragraphs 97-99;
iv. National Environment Council paragraph 100 of NEP;
v. Local Authorities paragraph 101-102;
vi. Committees on Environment at the Regional, District, Ward and Village levels as per
103-104. Also capacity building is another aspect covered by the NEP. It includes both
adequate facilities and trained personnel to realize the NEP Objectives. Thus human
resource development must be given priority in respect of environmental matters.

2. Natural resources sector Policies

A. The Wildlife Policy of Tanzania, 2007

The Policy is divided into Five Parts: The First part being historical background; part II is about
Tanzania Wildlife and Wetland Resources potential; PART III covers the Wildlife Policy and
Roles of Different Institutions and Objectives of the Policy; Conclusions are drawn under part
IV; PART V covers Annexes.

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Part II

Part II of the Policy dedicates itself to Tanzania Wildlife and Wetland Resources potential by
articulating the importance of these resources nationally and globally. It points out number of
endangered and endemic species and recognizes a number of wildlife habitats. The categories of
wildlife protected areas are well articulated to include national parks, Ngorongoro Conservation
area, game reserves and game controlled areas.

The policy goes on to point out that there are various forms of wildlife and wetland utilization in
Tanzania mainly game viewing, tourists sport hunting, resident’s hunting; wildlife farming,
breeding and ranching; eco-tourism and zoos and game sanctuary.

Part III

Part III of the Policy articulates the issues that the policy is all about. It articulates different roles
of different institutions.

A. Central government –will be the sector regulator, facilitator and service provider.
B. Local Authorities- District Councils are required to implement the policy by
formulating and enforcing by laws, preparation of sound physical and
development plans that protect wildlife and wetland areas.
C. Stakeholders- Private sector must support the government in the conservation,
development and sustainable utilization of wildlife and wetland resources through
investing on the sector.

Objectives and their respective policy Statements

a. Protection and conservation of wildlife and wetlands: Maintenance of viable conservation

areas of all important habitats and viable populations of all species.
b. Loss of wildlife habitats and wetland degradation
c. Sustainable utilization of wildlife and wetlands: On equitable sharing arising out from the
wildlife and wetland resources utilization

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d. Management and development of wildlife and wetland resources: This relates to

management of the wildlife and wetland resources to sustain perpetuity.
e. Enhance Communication, education and public awareness- this aims at changing
people’s altitude and actions for conservation and wise use of wildlife and wetland.
f. Coordinate implementation of the Policy- wildlife and wetland conservation in village
land and private land.
g. Foster regional and international cooperation

B. The National Forest Policy 1998

This policy is divided into five chapters: Chapter one deals with National framework for forest
policy formulation; Chapter II is about main sectoral problems and opportunities; Chapter III
deals with sectoral goals and objectives; Chapter IV provides for Policy Statements; and Chapter
V articulated about the roles and responsibilities of various stakeholders.

Chapter II of the Forest Policy deals with main sectoral problems and challenges. It points that
almost two- thirds consists of woodlands on public lands which lack proper management. Public
lands are under enormous pressure from expansion of agricultural activities, livestock grazing,
fires and other human activities. The main reasons for deforestation are clearing for agriculture,
overgrazing, wildfires, charcoal burning and over-exploitation of wood resources.

Chapter Three states that the overall goal of the national forest policy is to enhance the
contribution of the forest sector to the sustainable development of Tanzania and the conservation
and management of her natural resources for the benefit of present and future generations.

The objectives of the forest sector on the basis of the overall goal are as follows: Ensured
sustainable supply of forest products and services by maintaining sufficient forest area under
effective management; Increased employment and foreign exchange earnings through
sustainable forest-based industrial development and trade; Ensured ecosystem stability through
conservation of forest biodiversity, water catchments and soil fertility; and Enhanced national
capacity to manage and develop the forest sector in collaboration with other stakeholders.

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Chapter IV is about Policy Statements. In this Chapter in each area the relevant policy issues are
discussed and policy statements given, followed by a description of the main policy instruments
and directives to be applied.

The Forest land management OBJECTIVE: ensured sustainable supply of forest products and
services by maintaining sufficient forest area under effective management. Forest on public land
(Non-reserved forest land)

Ecosystem Conservation and Management: ensured ecosystem stability through conservation

of forest biodiversity, water catchments and soil fertility. To implement this, the NFP states as
follows:

Institutions and human resource: Enhanced national capacity to manage and develop the forest
sector in collaboration with other stakeholders.

C. The National Water Policy, 2002

Water Resources Allocation, Use and Socio-Economic Considerations

1. Water as a common use resource

Objective: To have in place fair and equal procedures in access to and allocation of water
resources so that all social and economic activities are able to maximize their capacities.

2. Prioritization of water uses

Objective: to have criteria for prioritization of water allocations so as to ensure that socio-
economic activities and the environment receive their adequate share of the water resources on
the basis of its availability, and to enable the sectors increase productivity, and to mitigate
conflicts.
4.2 Water Conservation, Water Quality Management and Pollution Control
(a) Sustainable water use and conservation Objective: To have in place appropriate principles
and procedures for managing the quality and conservation of water resources, as well as improve
and protect the ecological systems and wetlands

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(b) Sustainable groundwater resources development and use Objective: To have sustainable
groundwater resources for the present and future generation.

(c)Water quality management and pollution control Objective: To have water resources with an
acceptable quality.
4.3 Water and the Environment
Objective: To have in place water management system that protects the environment, ecological
system and biodiversity.
4.4 Water Resources Assessment, Planning and Development
4.4.1 Water resources assessment
Objective: To have appropriate and sustainable procedures for management and preparation of
water use plans
4.4.2 Water resources planning and development
Objective: To have sustainable plans and development of water resources.
4.8 Disasters Management
4.8.1 Floods
Objective: To have flood mitigation plans
4.8.2 Droughts
Objective: To minimize the negative impacts of droughts
4.8.3 Dam Safety Monitoring, and Ownership of Dams
Objective: To have procedure for safety and ownership of dams.
4.9 Trans-Boundary Water Resources
PS- In order to have effective framework for the management, development and utilization of
transboundary water resources the following measures will be taken:

D. The Agriculture and Livestock Policy 1997

The policy provides the framework for improved productivity and the incomes of stakeholders
whose livelihoods depend on agriculture and livestock.

The policy takes cognizance of two major issues. First, it takes note that environmental issues cut
across different sectors and call for a coordinated approach to the conservation of environmental

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resources as they have a bearing on the development of agriculture and livestock sectors.
Secondly, that agriculture depends on natural resources such as land, water, forests and air.
Therefore, the irrational use of these resources would negatively affect the agriculture and
livestock sectors.

E. The Energy Policy 2003

It was developed by the Ministry of Energy and Minerals in order to promote the use of
alternative sources of fuel which are not harmful to the environment.

F. The National Land Policy 1995

The Land policy seeks inter alia to establish, support and guarantee a secure land tenure system,
which is capable of facilitating the sustainable use of resources found on land. Furthermore, the
policy seeks to ensure that sensitive areas, such as forests, river basins, areas of biodiversity and
national parks are not allocated to individuals to conduct development activities.

(3) INTERNATIONAL OBLIGATIONS

International Co-operation in Environment

Environment being a global agenda, Tanzania cooperates with other nations in managing the
global environment. In that regard, the United Republic of Tanzania is a party to various
international treaties aimed at the protection of the environment. The treaties are divided between
those having a universal application and those limited to the Africa Region. Some of the treaties
and conventions on environmental issues that Tanzania is a party are as follows:

i. The convention relative to the Preservation of Fauna and Flora in their Natural state, London,
1993
ii. The convention on the African Migratory Locust, Kano, 1962
iii. The African convention on the conservation on nature and Natural Resources, Algiers.
iv. The convention on Wetlands of International Importance Especially as W aterfowl
Habitat (the Ramsar Convention), 1971
v. The convention on the Prevention of Marine Pollution by Dumping of Wastes and other
matters, London, 1972.
vi. The convention concerning the Protection of World Cultural and Natural Heritage, Paris,
1972.

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vii. The convention on the Prevention of Marine Pollution from ships (MARPOL) 1973.
viii. The convention on International Trade and Endangered species of Wild Fauna and Flora
(CITES), Washington, 1973.
ix. The United Nations Convention on Law of the Sea, Montego Bay, 1982.
x. The Montreal Protocol on substances that deplete the Ozone layer, Montreal, 1987.
xi. The Basel convention on the control of Transboundary Movements of Hazardous Wastes and
their Disposal, 1989.
xii. Bamako convention on the Ban of the Import into Africa and the control of Transboundary
Movements of Hazardous Wastes within Africa, 1990.
xiii. Convention on Biological Diversity, 1992.
xiv. The United Nations Framework convention on climate change, 1992.
xv. Convention to combat Desertification, particular Africa, Paris, 1994.
xvi. The Kyoto Protocol
xvii. The Cartagena Protocol
xviii. Stockholm Convention on Persistent Organic Pollutants, 2001
xix. Rotterdam Convention of Prior Informed Consent Chemicals, 1998

International convention on natural resources and environment had an impact in the enactment
and approach adopted in national legislation on similar matters in Tanzania. The Environmental
Management Act, 2004 empowers the Minister responsible for environment to initiate and
prepare legislative proposals for implementation of international or regional agreements
concerning the management of the environment. That includes identification of appropriate
measures necessary for the implementation of agreements, which Tanzania is a party. The
responsibility of creating mechanism for working closely with international and regional
communities in ensuring a peaceful, healthier and better global environment is again vested in
the Minister responsible for environment.

Convention on Biological Diversity

1) The conservation of biological diversity;
2) The sustainable use of its components; and
3) The fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

United Nations Framework Convention on Climate Change

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It aims to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system. Such a
stabilization level should be achieved ‘within a time-frame sufficient to allow ecosystems to
adapt naturally to climate change, ensure food production is not threatened and to enable
economic development to proceed in a sustainable manner.’

Convention on International Trade in Endangered Species of Fauna and Flora

CITES entered into force on 1 July 1975. It established a permit system to control imports and
exports of wild fauna and flora. CITES lists controlled flora and fauna in three appendices.
Appendix I covers all species threatened with extinction that are, or may be, affected by trade.
Commercial trade in these species is essentially banned and can only be authorised in
exceptional circumstances. Appendix II covers species that are not currently threatened with
extinction, but could become so unless trade is controlled under the Convention. Appendix III
covers species that any Party has identified as being subject to national regulation for the purpose
of preventing or restricting exploitation, and as such, require the cooperation of other Parties to
control the trade. Parties are required to establish national Scientific Authorities to advise on the
endangered status of native species of flora and fauna, and a Management Authority to regulate
their trade.

Vienna Convention for the Protection of the Ozone Layer

Parties are obliged to take measures to protect both human health and the environment, against
adverse effects likely to result from human activities that modify the ozone layer. There are no
targets or timetables for action. Instead, there is an outline of general obligations on the Parties,
which focus on obligations to undertake research on the ozone layer, in particular on the effects
of human activities on the ozone layer and how these may be addressed. It establishes a
framework for future international legal measures to protect the ozone layer by providing for
future protocols.

CHAPTER TEN

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Subsidiary Legislation for Environmental and Natural Resources Management in

Tanzania

Meaning of Delegated Legislation

As a general rule under the principle of separation of powers it is the Legislature (Parliament)
that is vested with powers to make laws (Refer to Art.4 separation of powers and Art. 64(1)(2)
supremacy of the Parliament). Since it is impossible to have a complete separation of powers,
there are circumstances under which the legislature may delegate its legislative powers to other
organs of the state. This sometimes is referred to as the concept of checks and balances

To delegate refers to the act of granting another power to act on one’s behalf. Therefore,
delegated legislation means laws made by other bodies on behalf of the parliament.

Delegated or subsidiary legislation has been defined under section 1 of the Interpretation of Laws
Act (Cap. 1 R.E 2002), as “any Order, Proclamation, Rule, Rule Of Court, Regulation,
Notice, By-Law or Instrument made under any Act or other lawful authority”
Powers to make delegated legislation

The powers to make delegated legislation in Tanzania are derived from two sources namely:

First, the Constitution of the United Republic of Tanzania 1977 under article 97(5) clearly
permits the parliament to delegate its legislative powers to other bodies or government agencies,
as quoted herein below:

“The provisions of this Article or Article 64 of this Constitution shall not prevent
Parliament from enacting laws making provisions conferring on any person or
department of Government the power to make regulations having the force of law
or conferring the force of law on any regulations made by any person, or any
department of Government”.

Second, Parent/Enabling/Mother/ Act, before any delegated legislation is made there must be
in place an Act of Parliament (statutes) that confers legislative power to any person or
department of government to make such delegated legislation. A good example is sections 88,
89, 90 and 94 of the Local Government (Urban Authorities) Act [RE 2002], which confers
powers to town, municipal and city councils to make by laws. Another example under section 53
(1)&(2) of the Petroleum Act 2008 (Act No. 4 of 2008) empowers to minister to make
Regulations, it reads

“53(1) The Minister may make Regulations generally for the better
carrying out of the provisions and purposes of this Act

(2) Regulations under this section shall be published in the Gazzette”

Justification for having delegated legislation

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There are arguments that delegated legislation undermine the legislative powers of the
Parliament and contravenes the principle of separation of powers. Despite this criticism, scholars
have found delegated legislation to be useful in a number of ways. The following are some
justifications for delegated legislation.

i) Reducing the parliament work load

Practically the parliament cannot legislate on each and every issue in the country. In Tanzania
the Parliament meets only four times in a year while the budgetary session is the longest.
Therefore, the parliament should legislate on essential principles and delegate the powers to
other bodies to make delegated legislation covering the details and procedural issues.

ii) Local variation

Laws made by the parliament are of general application; however there are certain issues which
are specific only to certain categories of people or societies. For example laws regulating poultry
if applied equally in townships and rural areas may create in justice. Poultry in Masasi may be
different in many ways with poultry in Dar es salaam. Therefore, in order to accommodate local
variations, the district councils or municipal councils are allowed to make by laws which are
applicable only within their geographical boundaries.

iii) Emergency or contingency situation for example wars, public health

iv) Flexibility in law making

The parliament when making laws cannot foresee and foretell what will be happening thereafter.
Therefore, delegated legislation will be made to suit specific variations not contemplated by the
parliament when enacting the Act.

v) Technicality of the subject matter

Some issues like atomic energy, aviation, radiation or marine science require high technical
expertise to understand them. It is quite clear that the parliamentarians are not skilled and lack
expertise on these issues. Therefore, the parliament will make laws prescribing the general
principles and the rest of technical issues will be left to persons or government departments to
make delegated legislation. For example a minister has a team of experts to consult before he
makes delegated legislation.

Examples of Subsidiary Legislation

The Forest Regulations, G.N. No. 153 of 2004.
Fisheries Regulations, G.N. No. 317/1989
The Wildlife Management Areas (Regulations) G.N. No. 283 of 2005.
The Land (Forms) Regulations, G.N. No. 71 of 2001.
The Land (Assessment of the Value of Land for Compensation) Regulations, G.N. No.
78 of 2001.

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The Land (Compensation Claims) Regulations, G.N. No. 79 of 2001

The Land (Management of the Land Compensation Fund) Regulations, G.N. No. 82 of
2001.
The Environmental Impact Assessment and Audit Regulations, G.N. No. 349 of 2005.
Environmental Management (Fees and Charges) Regulations 2008 (GN 154/2008)
The Road Sector Environmental Assessment and Management Regulations, 2009 (GN No.
337/2009)
The Strategic Environment Assessment Regulations 2008 (GN No. 153/2008)
The Environmental Impact Assessment and Audit Regulations, 2005, GN 349/2005
The Environmental (Registration of Environmental Experts) Regulations, 2005 (GN No.
348/2005)

District and other authorities By-Laws

Sheria Ndogo za Halmashauri ya Wilaya ya Dodoma ya (Upandaji Miti na Hifadhi
ya Mazingira) za Mwaka, 2003 GN No. 377 2003.
Sheria Ndogo za (Hifadhi ya Misitu) za Wilaya ya Kigoma, GN. No 244 of 2000
30/06/2000.
Sheria Ndogo (Za Hifadhi ya Misitu na Mazingira) Za Halmashauri ya Wilaya ya
Sumbawanga, 2000, GN 236 of 2000 published on 30/06/2000.

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MWINULA JACOB
AND
MWAKAPALA ISRAEL
UNIVERSITY OF DAR ES SALAAM
SCHOOL OF LAW.

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