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Compulsory Land Acquisition by Local Government Authorities in Tanzania - Policy and Practice
Compulsory Land Acquisition by Local Government Authorities in Tanzania - Policy and Practice
By
Charles Kitalya
REG#. VRB/CAND/042/2021
CERTIFICATION
The undersigned certify that they have read and hereby recommend for examination a
DECLARATION
AND
COPYRIGHT
I, Charles Kitalya, hereby declare that this thesis is my own original work and that it
has not been presented and will not be presented to any other Institution for a similar
Signature…
This Thesis is copyright material protected under the Berne Convention, the
Copyright Act of 1999 and other international and national enactments, in that behalf
on intellectual property. It may not be reproduced by any means, in full or in part,
except for short extracts in fair dealing; for research or private study, critical scholarly
review or discourse with an acknowledgement, without the written permission of the
Registrar, on behalf of both the author and Valuers Registration Board.
iii
ABSTRACT
This study examines the scope and extent of which policies and statutes available are
applied before, during and after a particular piece of land is acquired by local
government authorities for public purpose in Tanzania. The focus is on the actual
acquisition process adopted by the Kahama Municipal Council as a Planning
Authority in its own attempt to obtain land for various development projects
especially for Kahama urban area expansion.
Through actual practices, the study specifically aimed at examining the source,
extent, and limits of land acquisition powers; the actual land acquisition processes
adopted by the Kahama Municipal Council; and to evaluate general challenges faced
by Local Government Authorities in implementation of land acquisition projects for
urban expansion in Tanzania. The study takes the type and design as descriptive
research with a case study strategy, the study relied on participatory observation with
questionnaires, interview and documentary review techniques to obtain the required
information from both primary and secondary sources.
The study found that majority of respondents were not aware of the power of
President of the United Republic to acquire any land for public purpose. All projects
implemented without prior statutory notices been serviced to PAPs informing that
their lands are subject to acquisition for public purpose as mandated by the Land
acquisition Act. Payments of compensation to PAPs ware effected by KMC instead
of the Fund as required by the laws of the country. It has been observed that there is
no national framework for administration of land acquisition procedures and that no
comprehensive resettlement policy to regulate RAP and harmonize local and
international guidelines. The study recommends to authorities responsible for lands
ensure comprehensive national framework for administration of land acquisition is in
place to help proper implementation of land acquisition for urban expansion in
Tanzania.
iv
ACKNOWLEDGMENTS
I would like to thank the Almighty God for the gift of life and endless blessings! The
accomplishment of this thesis involved many people who deserve thanks. First, I
would like to express my special thanks to the Registrar of the valuation Board Mr.
Shewiyo for the much-needed support during VRB training and field research work,
and to My supervisor Prof. Joseph L. Kironde for his untiring support and kindness. It
has been a pleasure working with you all together. Thank you very much.
I would also like to thank the then Kahama District Council (KDC) and Ushetu
District Council (UDC) under PO-RALG for having employed me; they provided a
physical platform for me to practice my academic profession. I am therefore greatly
indebted to all those who in one or many ways contributed towards developing my
education and professional carrier. I want to express special thanks to Dr. Agnes
Mwasumbi, Dr. Moses M. Kusiluka, and for my mentors Mr. Edward Mbagukila and
Mr. Alec Rwongezibwa for their valuable time and energy in accelerating my positive
vision in early days of professional practices. All that they did, means a lot to me only
to say thank you! I am extremely grateful to Mr. Gerson Malisa and senior valuer Mr.
Mshasha for their kindness. Thank you, “Teacher Malisa” for going the extra mile to
ensure that I enjoyed my internship at TKA Company Ltd. Special thanks to Mrs.
Evelyne Mgashwa, (Chief Valuer) for always being there when needed.
The number of professional colleagues that I should express my deepest gratitude to
is huge. Special thanks for Mr. Geoffrey Joseph Kitalile, Mrs. Genoveva G. Mazenge,
Mr. Frank Kanizio, and Chiremeji Rafael for some long and creative discussions. No
matter where my life leads me, I will always remember the good cooperation
accorded to me by all members of TIVEA/AREPTA FORUM WhatsApp group, first
for accepting me among them as I was and for their invaluable contribution and
critical discussion which enlightened my mind and knowledge and provided me with
so much joy.
I also, greatly thank the officials of the Kahama Municipal Council for their support
during field survey. Mr. Anderson Msumba and the Authorized Officers, Mr. Yusuph
J. Luhumba and their subordinates for their helpful support, I say thank you all.
Lastly, I would like to thank my family and friends: To my mother and my dear wife
v
for their support and unconditional love. In due respect of the inputs borrowed from
various individuals to this thesis, I remain fully responsible for any mistakes that may
be contained herein.
vi
TABLE OF CONTENTS
CERTIFICATION ........................................................................................................ i
DECLARATION ......................................................................................................... ii
AND ............................................................................................................................. ii
COPYRIGHT ............................................................................................................... ii
ABSTRACT ................................................................................................................ iii
ACKNOWLEDGMENTS .......................................................................................... iv
TABLE OF CONTENTS ............................................................................................ vi
LIST OF TABLES ...................................................................................................... ix
LIST OF FIGURES/CHARTS ..................................................................................... x
LIST OF STATUTES/REGULATIONS/CASES....................................................... xi
LIST OF ABBREVIATIONS AND ACRONYMS................................................... xii
THE PROBLEM AND ITS CONTEXT ...................................................................... 1
1.0 Introduction ....................................................................................................... 1
1.1 Background Information ................................................................................... 1
1.2 Statement of the Problem ....................................................................................... 3
1.3 Objectives of the Study .......................................................................................... 4
1.3.1 Main Objective .................................................................................................... 4
1.3.2 Specific Objectives.............................................................................................. 4
1.3.3 Research Questions ............................................................................................. 5
1.4 Significance of the Study ....................................................................................... 5
1.5 Scope and Area of Study ........................................................................................ 5
CHAPTER TWO ......................................................................................................... 7
THEORETICAL FRAMEWORK AND LITERATURE REVIEW ........................... 7
2.0 Introduction ............................................................................................................ 7
2.1 Definition of Terms ................................................................................................ 7
2.1.1 Market Value....................................................................................................... 7
2.1.2 Fair Replacement Value ...................................................................................... 8
2.1.3 Property Valuation .............................................................................................. 8
2.1.4 Compulsory Acquisition ..................................................................................... 8
2.2.5 Eminent Domain ................................................................................................. 8
2.2.6 Expropriation....................................................................................................... 9
2.2.7 Compensation...................................................................................................... 9
2.2.8 Crown Land ......................................................................................................... 9
2.2.9 Public Purpose..................................................................................................... 9
2.3 The Legal Framework of Land Acquisition in Tanzania ..................................... 10
2.3.1 The German Imperial Decree of 26th November 1885 .................................... 10
2.3.2 Compulsory Acquisition Under the Land Acquisition Ordinance, of 1926...... 10
2.3.3 The Land Acquisition Act, No. 47 of 1967 ....................................................... 11
2.3.4 National Land Policy 1995 and Land Act & Village Land Act, of 1999.......... 12
2.4 Principles Governing Compulsory Land Acquisition and Compensation ........... 13
2.5 Review of Empirical Studies................................................................................ 14
DYNAMIC CONCEPTUAL FRAMEWORK .......................................................... 18
CHAPTER THREE.................................................................................................... 19
RESEARCH METHODOLOGY ............................................................................... 19
3.0 Introduction .......................................................................................................... 19
vii
LIST OF TABLES
LIST OF FIGURES/CHARTS
Figure 3:1 Map of Kahama Municipal Council showing wards involved in the study
................................................................................................................. 20
Chart 4:1 Showing Awareness of Power to Acquire Land in Tanzania.................. 28
Chart 4:2 Showing Participation of PAPs during Field inspection ......................... 31
xi
LIST OF STATUTES/REGULATIONS/CASES
CHAPTER ONE
THE PROBLEM AND ITS CONTEXT
1.0 Introduction
This chapter provides a brief discussion on the background of the study. It establishes
the basis for research problem and develops its context throughout the study. The
chapter, therefore, provides the background information, statement of the problem,
objective of the study, specific research objectives, research questions, the
significance of the study, and scope and area of study.
have to plan and control the usage of land and grant consent to develop the land
alongside preserving and improving amenities (URT, 2007). For fast-growing towns
like the Kahama Municipality, the challenge to obtain land for expanding its urban
boundaries is real. Kahama municipality has, therefore, been experiencing both urban
pull and urban push by attracting more new urban dwellers from the rural areas as
well as by high urban rates of natural increase pushing the boundaries outwards to
peri-urban areas.
Urban expansion means more rural lands have to be taken by Planning Authorities to
provide shelters to the urban population. Hence, the land is a vital component in the
urban economic process and an important asset. Everyone needs some land to live on
and work. Its ownership pattern and its use largely determine the structure of the
economy and shape economic processes. In the urbanization process, the land
previously used for agricultural and other related purposes is put to non-agricultural
uses such as housing, commercial infrastructure, public utilities and the like. When
rural land is converted into urban land, it commands far greater market value (Vijay,
2015).
According, to Tanzania all land is public land vested in the President as trustee, and
the state has an inherent power of an eminent domain. It can acquire land at any time
for fair, full, and prompt compensation.1 President is the custodian of land (in the
name of trustee), and individuals only have usufruct rights. Sections 19-23 of the
Land Act,2 recognize the existence of three land tenure systems: statutory or granted
rights of occupancy, the customary right and other informal rights (Kombe, 2010). Of
all the three regimes, the state retains the right to own the land and is entitled to take
it back at the end of the lease, or if leaseholders do not abide by the conditions of the
grant (ibid).
Sustainable development requires governments to provide public facilities and
infrastructure that ensure safety and security, health and welfare, social and economic
enhancement, and protection and restoration of the natural environment (FAO, 2008).
To obtain land when needed, governments have the power of compulsory acquisition
on land: they can compel owners to sell their land for public purposes. Compulsory
1
The Land Act, No. 4 of 1999, [CAP 113 R.E.2019].
2
The Land Act, No. 4 of 1999, [CAP 113 R.E.2019].
3
land acquisition is the process by which local and national governments obtain land
and premises for development purposes when they consider this to be in the best
interest of the community. Compulsory acquisition requires finding the balance
between the public need for land on the one hand, and the provision of land tenure
security and the protection of private property rights on the other hand. The process
of compulsory acquisition and compensation is governed by legislative statutes that
vary from one country to another.
In Tanzania, the principal legislation governing Compulsory land acquisition is the
Land Acquisition Act, 47 of 1967.3 Section 3 of the Act, empowers the President to
acquire any land for any estate or term where such land is required for any public
purpose. Under the Land Acquisition Act,4 and any other law related to Acquisition,
assessment and payment of compensation in Tanzania, the compensation payable to
dispossessed persons is purported to be based on the market value of the property or
land. Therefore, the spirit of compensation relies on the principle of equivalence
which the authorities have to ensure that all affected individuals and households
neither lose nor gain as a result of their land or property being appropriated for public
purpose in Tanzania.
3
The Land acquisition Act, No. 47 of 1967, CAP 118, [R.E. 2019].
4
The Land acquisition Act, No. 47 of 1967, CAP 118, [R.E. 2019].
4
to acquire the subject land; Legal preliminaries (Obtaining statutory notices and
servicing of notices); Field Works (Sensitization and Valuation of compensable
items); Payment of compensation to dispossessed persons; and provision of post-
payment complains.
However, there has persisted an issue of considerable deprive or failures in observing
the policy and legal instruments on compulsory land acquisition. A number of cases
have been recorded where complaints and disputes were directly linked to failure of
authorities to adhere to statutory key steps. The challenges are experienced
throughout the implementation process of land acquisition especially for those
projects executed by Local Government Authorities in Tanzania.
CHAPTER TWO
THEORETICAL FRAMEWORK AND LITERATURE REVIEW
2.0 Introduction
This chapter contains an index of key terms used in the study by providing a brief
discussion on the legal framework and synopsis of empirical grounding of relevant
works of literature borrowed to complement the study. By describing the basics of
land acquisition and payment of compensation practices, the author describes the
reviews and culminates the thinking, views and opinions of other scholars based on
global, regional, and country perspectives.
5
Land Acquisition and Compensation Assessment have been covered in various statutes in
Tanzania. They include: The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E. 2019]; Land
Act, No. 4 and Village Land Act, of 1999 [Cap 113 & 114, R.E.2019]; The Urban Planning Act,
No. 8 of 2007; The Valuation and Valuers (registration) Act, No. 7 of 2016; The Investment Act,
No. 26 of 1997; The Road Act, No. 13 of 2007; and The Export Processing Zones Act No. 11 of
2009.
6
Ndjovu, C.E. (2003), ‘Compulsory Purchase in Tanzania: Bulldozing Property Rights’ Published
PhD Thesis, Kungl Tekniska Hogskolan, Stockholm
9
opposed that the state had the power to take or destroy property for the public's
benefit, but he also believed that when the state exercised that power, it was obligated
to compensate the injured property owner for the losses.7
Therefore, with eminent domain, the property is taken either for government use or
by delegation to third parties who will devote it to public or civic use or, in some
cases, economic development. The most common uses of property taken by eminent
domain are for public utilities, highways, and railroads. Some jurisdictions require
that the government body offer to purchase the property before resorting to the use of
eminent domain.8
2.2.6 Expropriation
The term expropriation means the action by the state or an authority of taking
property from its owner for public use or benefit.
2.2.7 Compensation
The term compensation means the sum of money which land or property occupiers
might have realised if the property were sold in an open market by a willing seller at
the time of compensation. Also, it is used to refer to any other form of payment
(including payment in kind) in exchange of an interest or right acquired or taken by
the state for public use.
7
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.11 (4th ed. 1991).
8
Nabutola, W. L (2009); Compulsory Purchase and Land Acquisition in Kenya. TS 4C –
Compulsory Purchase and Land Acquisition II.
10
general public uses including improvement of public utilities such as trunk roads,
planning of new commercial/business centres, residential and other land use
requirements for expansion of a city or municipality. It also includes land for
development of public facilities such as schools, universities, ports and airports.
9
CIDE (1995);
10
CIDE (1995);
11
Land Acquisition Ordinance Cap 118 of 1926
11
12
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019]
12
2.3.4 National Land Policy 1995 and Land Act & Village Land Act, of 1999
The National land policy of 1995 and both the Land Act and Village Land Act of
1999 provides that all land in Tanzania is public land. They also recognize that an
interest in land has value and hence provide for the protection of such interests in
every transaction related to land and all unexhausted improvement on land. The
president is vested with trusteeship role in regard to public land for and on behalf of
all citizen of Tanzania.
The Land Policy affords for full recognition of land rights and interests of peri urban
dwellers. As those rights and interest are acquired by the state, the dwellers should be
re-allocated plots/lands for their use (Msangi, 2011). The policy on section 6.3.0
emphasizes that the authorities should undertake formal procedures by invoking a
declaration of an areas subject to development as “planning areas” prior to its
acquisition and re-designation of peri urban areas for urban development (URT,
1995).
As peri-urban lands are subject to acquisition for urban expansion, authorities must be
confined to fundamental principles of the National Land policy of 1995. The key
fundamental principles that ensures protection of rights and interests in lands and
which confers mandatory payment of compensation when land is taken are provided
under section 3(1)g-h of the Land Act.13 Authorities should take into account that an
interest in land has value and that value is taken into consideration in any transaction
affecting that interest; and to pay full, fair and prompt compensation to any person
whose right of occupancy or recognised long-standing occupation or customary use
of land is revoked or otherwise interfered with the State (URT, 1999). In urban areas,
peri-urban lands constitute of customary and quasi-customary tenures which must be
extinguished by observing proper protocols through compulsory acquisition and
payment of full, fair and prompt compensation. The rationale is that the process of
13
The Land Act, No.4 of 1999 [Cap 113, R.E.2019].
13
14
Extracted from Policy Statement provided under section 6.3.1 of the National Land Policy, 2nd
edition. The aim is to help Planning Authority to avoid conflicts between statutory and customary
tenure.
14
15
1King 21: The Bible, New Revised Standard Version, 1989.
15
In Nigeria, the contact of land acquisition means acquiring of the entire title of the
land holder whatever the nature and extent of that title may be (Oyedele, 2015). The
consequence of land acquisition is to provide an available free of use lands. The
governments appreciate the importance of compensation of land and property rights
which are the major key in economic growth and development (Ominrin, 2002). Also,
the experience in other countries in sub-Saharan Africa like Kenya, Ghana, Ethiopia,
Nigeria, South Africa and Zimbabwe, just to mention a few, the inherent power to
acquire land for public purpose is provided in their own constitutions.
In Ghana, the State’s power of eminent domain has been exercised since colonial
times under various enactments. The rationale for invoking the power is to ensure
socio-economic development for the public good. The administration of land
acquisition and management of state lands have resulted into several unresolved
challenges. Among them are the acquisition of lands far in excess of actual
requirements, unpaid compensation in respect of some of the acquisitions,
encroachment on acquired lands, lack of intergenerational equity in the utilization of
paid compensation, change of use of compulsorily acquired land as against the
purpose of the acquisition, optimizing the use and economic returns of state lands,
and private sector participation in the development of compulsorily acquired land.
There is another category of lands occupied by the state without any acquisition,
depriving the land owners the opportunity to demand compensation. The result is loss
of public confidence in the state machinery for the management of land, leading to
tension between the state and customary land owners, massive deliberate
encroachment of state lands, and challenging the state’s legitimacy to claim control
over compulsorily acquired lands. Under the Ghana Land Administration Project,
policy proposals are to be developed to deal with the outstanding issues of
compulsory acquisition and also make proposals to guide future compulsory
acquisitions (Larbi, W. O. 2008).
In Kenya, compulsory acquisitions arise when the State or Government decides to
take over a property without private negotiations, thus the term “compulsorily”
acquire property for public use without the consent of the owner but with a just
compensation. The acquisition is done under statutory legislation and the act of
acquiring aims at general benefit of the community as a whole. The powers to
16
compulsorily acquire land in the public interest in Kenya is embodied in articles 75,
117 and 118 of the Constitution of the Republic of Kenya as well as other legislation
including the Land Acquisition Act. Cap 295 of Laws of Kenya; The Water Act; The
Electric Power Act, and the Local Government Act. Cap 265.16
In Uganda land acquisition is governed by the Land Acquisition Act Cap. 226 which
provides legal mandate to government to acquire land for public purpose. The
government is obliged to compensate the land holder without delay, fairly and
adequately (Article 26 of the Constitution and Section 42 of the Land Act).
The perspectives of land acquisition in Tanzania can be traced back during the
colonial era. In the colonial history, the meaning, use and interpretation of “public
purpose” is recorded to have been very wide and included among others, sanitary lane
to some plots, construction and widening of roads; eradication of mosquito breeding
grounds in the anti-malaria campaigns; development schemes for residential
settlements; public housing especially for Europeans; public water supply projects;
harbour expansion programs; construction of factories, and many more (Ndjovu,
2015).
Meanwhile, during the colonial era, the owners of land rights which were legally
recognized deserved compensation regardless whether the affected property was in a
surveyed area or not. However, this was not always the case as seen in the Kisutu
demolition case narrated above. The illegal squatters and those who wanted to be
double compensated by a project were usually not considered as it is the same today.
Besides, any compensation claimant had to have a documentary proof beyond
reasonable doubt as to his or her entitlement. Colonial Governor was required by law
and practice to demand a valid, written land title from any claimant before one ‘s
claim was entertained in compensation. This rule applied not only to private
individuals but also to the government itself. Since colonial government considered it
to be fair paying compensation for the loss in property rights, it similarly found it
important to ensure that such payments went to the rightful affected person(s) and
their heirs and not otherwise (Ndjovu, 2015).
As per the study by CIDE, 1995 in then Tanganyika and there after Tanzania; the
state has consistently taken the ambiguity in Land ordinance Cap. 113 as to the exact
16
Kiviu R.M. (2009); Valuation for Compulsory Acquisition. The Journal of Building Digest.
17
nature of the President's title over the lands to acquire privately owned land for any
reason and sometimes to reallocate to some other private interests. However, what
must be asserted is that the Land Ordinance Cap. 113 of 1923 and the new Land laws,
1999 confers upon the President the “eminent domain” and according to
constitutional jurisprudence, powers there under can only be excised for public
purpose only. Apparently, this is what the legislature had in mind when it enacted the
Acquisition of Lands Act, 1967 which provides expressly that “The President may ....
acquire any land for any estate or term where such land is required for any public
purpose" (s.3).
The study by Ndjovu,17 gives details on the effects during the colonial era suggesting
that the native Africans were affected negatively by these acquisition practices.
There were some of the so-called public purposes were unjustified because they
included non-public programs which were meant to perpetrate colonial policies like
racial segregation and systematic economic deprivation. In many of the acquisition
cases, the affected people had to agree not only to the proposed land acquisitions, but
also to the compensation amounts given.
Further, there were also considerable misinterpretation or maneuver/manipulation of
legal clarity on public purposes. The clauses were often as exemplified in the case of
Kisutu demolitions undertaken in 1935. Experience of the Kisutu case shows that
land acquisition was at times maneuvered for other social and political ends via
public purpose clauses. Kisutu area, which was un-surveyed and unplanned, was to be
taken without compensation because land owners had no ownership papers despite
their claims through adverse possession (Ndjovu, 2015).
17
Ndjovu, C.E. (2015); Compulsory Land Acquisitions in Tanganyika: Revisiting the British
Colonial Expropriation Principles and Practices, International Journal of Scientific & Technology
Research Volume 4, Issue 12, December 2015.
18
CHAPTER THREE
RESEARCH METHODOLOGY
3.0 Introduction
This section provides for how the study was designed and how both primary and
secondary data were collected. It presents the procedure and techniques used in
gathering data. The methodology applied, aimed at enabling the researcher to acquire
information and deduce conclusions about the research topic.
18
2021 GlobeFeed.com. Retrieved on 15th November 2021
20
Figure 3:1 Map of Kahama Municipal Council showing wards involved in the
study
The respondents were chosen based on the required information and their knowledge
so as to accomplish the study. Thus, the selection of the sample and its diversity was
done to ensure representatives are from the categories of stakeholders in order to
reduce the sampling error and hence to ensure the validity of the research work.
7 WEO/Ward Councilors 3
Total 70
19
Statutes commonly used in executing land acquisition assignments. They provide both mandatory
and administrative guidelines. They are Land Acquisition Act. No. 47 of 1967, Land Act. No. 4 of
1999, Village Land Act. No. 5 of 1999, and the Urban Planning Act. No. 8 of 2007.
23
technique is its ability to help the researcher analyze the data easily and helps to
compare and augment the responses easily.
6 WEO/Ward Councilors 3
Total 20
Source: Author’s Sampling, 2021
government policy papers (government gazette), and thesis both published and non-
published reports. The study also involved internet searches to supplement quick
access to digital literatures.
CHAPTER FOUR
DATA PRESENTATION AND DISCUSSION OF FINDINGS
4.0 Introduction
This chapter presents data and information gathered during the survey. It provides the
response rate, demographic information of the respondents, and key finding on
specific objectives. The information has been presented through the organization of
data into tables and charts, so that logical and statistical conclusions can be derived
from various dimensions. The chapter features two main parts with a number of
subparts, the first part provides respondents information and the second stands for
respondent’s views on specific objectives.
Total 70 68 2 97 3
TOTAL 48 100
Source: Author’s Study Findings, 2021
The rationale for reviewing the respondents’ age and education level was intended to
assess the knowledge and ability of understanding the practical challenges that could
be envisaged during implementation of land acquisition projects. For PAPs, age and
gender have something to do with procedures of land holding especially customary
rules on village land which remains to be one of the challenging issues in
implementing reforms in land tenure systems.
Meanwhile, education and experience are considered to be useful tools in enhancing
the performance especially when it brings in the ability to expertise the job
assignment. The study responses indicate that there were 14 professionals with a
degree and/or post graduate education level. This indicates that they were aware of the
challenges envisaged during implementation of land acquisition assignments.
20
Sec. 3 of Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
21
Definition of public purpose is provided in details under sec. 4 of Land Acquisition Act, No. 47 of
1967 [Cap 118, R.E 2019].
22
Sec. 4 (1) of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
23
National Land Policy, 2nd Edition, 1997
28
Acquisition Act,24 is that when land is compulsory acquired for public purpose, a fair,
full and prompt compensation must be payable.
Nevertheless, the survey on respondents’ view in regard to the powers to acquire land
shows different viewpoints. When PAPs were asked about the power to acquire land,
39 did not mention the president and 3 from administrative category had the same
response which indicate that a total of 42 out of 70 respondents were not familiar with
such legal requirement as can be illustrated in Chart 4:1below.
Empirical evidence suggests that the Presidents power to acquire land for public
purpose could be review when challenged before the court of law. Thus, the president
cannot acquire land for any other purpose which cannot be considered to be public
purpose. A dispute or disagreement may occur should the power of the President to
acquire land is exercised against any right of occupancy which is not for public
purpose. The position of section 13(b & e) of the Land Acquisition Act, provides a
framework by directing parties (Minister or PAPs) to institute a suit in the Court25 for
24
Sec. 11 of Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
25
Section 37(1)(c) of the Land Dispute Courts Act, No. 2 of 2002 [Cap 216, R.E.2019]
29
the determination of the dispute should there be no agreement within six months since
the publication of the notice to acquire land. The judicial review of administrative
action extends to the exercise by the President of the United Republic of power to
revoke rights of occupancy as it was decided in Patman Garments Industries Limited
v. Tanzania Manufacturers Limited.26
Komu, 201427 suggested that it is not possible to resist land acquisition in Tanzania
as the eventual ownership right is in the state and the President has the absolute
power to revoke any land rights. The assertion is proved to the contrary by the
decision of the Patman Garments Industries Limited v. Tanzania Manufacturers
Limited case and the legal possibility to institute a suit to the High Court on matters
regarding land acquisition as has been discussed herein above.
26
(1981) TLB, 303.
27
Komu, F (2014); Conceptualizing Fair, Full and Prompt Compensation – the Tanzanian Context of
Sustaining Livelihood in Expropriation Projects. Journal of Land Administration in Eastern Africa.
p.263, JLAEA Vol 2 Issue 2, July 2014.
28
Kombe, W. J. (2010), ‘Land acquisition for public use; emerging conflicts and their social political
implications’ Crisis state working papers Series No.2; October, 2010.
30
Land Acquisition Act,29 two mandatory notices should be issued; they are the Notice
of Intention to Take Lands and to Yield Possession (to hand over or relinquish one's
possession of land). Service and publication of notice is provided under section 8 of
the Land Acquisition Act.30 It requires that every notice (under S. 6 & 7) shall be
served either personally on the persons to be served or shall be left at their last usual
place of abode or business.
Nevertheless, the study found that KMC did not pursue to obtain any official and
mandatory notices as all land acquisition projects under review were implemented in
absence of the notices. Thus, requirement to obtain statutory authority and serving of
notices as manded under section 8 of the land acquisition Act was not adhered at all.
29
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
30
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
31
31
Government Notice No. 79 published on 4/5/2001.
32
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
33
Government Notice No. 79 published on 4/5/2001.
34
Sec. 173 of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
32
capable of suing and being sued, and capable of making contracts and of acquiring,
holding and disposing of property(ties).35
However, the procedure adopted by KMC to effect payment of compensation to PAPs
did not abide to the legal guidelines instead payments were made directly to PAPs by
the acquiring authority. The acquisition project undertaken in Mwendakulima was not
intended for urban expansion but to develop the acquired land as mining site. The
resettlement thereafter resulted into urban expansion as PAPs were given alternative
houses in neighbouring areas. For those PAPs whom were eligible for monetary
compensation, the beneficiary of the project – African Barrick remitted the amount
direct into PAPs bank accounts. Generally, the authorities adopted a mixed approach
of kinds of compensation in the sense that there was a combination of monetary
compensation, plots, house and grains. All payment in terms of money compensation
was only through bank deposit (see Table 4:4 below).
35
Sec. 173(2&3) of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
36
The Valuation and Valuers Registration Act, No. 7 of 2016
37
The Land Act, No. 4 of 1999 [Cap 113, R.E.2019]
33
engaging the PAPs, local leaders, and by deploying Valuation Form No. 3 which is
about property inspection for compensation purpose.38
Table 4:4 Showing the Kind and Mode of Payment of Compensation Adopted
S/N Wards Kind/Type Mode of delivery Observation
1 Busoka Money and Plots Cheque through bank Less complains, bank
deposit. Plots allocated deposit not friendly to
direct to PAPs. most of PAPs.
7 Nyasubi Money and Plots Cheque through bank Less complains, bank
deposit. Plots allocated deposit not friendly to
direct to PAPs. most of PAPs.
38
Made under Regulation 64(1)(e)(iv) of the Valuation and Valuers (General) Regulations, 2018.
34
responses indicates that there is no record of payment of interest for late payment of
compensation that had ever been executed by the authorities in Kahama Urban area.
Meanwhile, the position of the law governing payment of compensation requires that
payment be made promptly and any delay shall be subject to payment of interest for
late payment.39 However, in practice there has been a confusion on determination of
the date on which the basis of delay for payment of compensation can be computed.
Determination of delay – where to start? Is it after the approval date as per section
52(8) of the Valuation and Valuers (Registration) Act, No. 7 of 2016? or is it on the
date of service and publication of notice to yield possession as per section 8 and 14
(a) of the Land Acquisition Act, No. 47 of 196740?
Through review of literatures, this study has found that the Land Acquisition Act,
No.47 of 196741 is a superior legislation in all matters relating to land acquisition in
Tanzania (Kombe, 2010). Thus, the interest for delay of payment should be computed
from the date of service and publication of notice to yield possession which can
literally be regarded as the date of acquisition. The law provides further that the
interest rate should be six per centum (6%) per annum from the date when possession
is taken until such compensation is paid as per section 15 of Land Acquisition Act,
No. 47 of 1967.
Besides, opinion from respondents suggested that the interest rate on delay of
payment be based on market rate, not the statutory rate (the 6% as directed by the
Land Acquisition Act). This assertion is line with the position of section 52(5) of the
Valuation and Valuers (Registration) Act, which provide that an interest chargeable at
the average percentage rate of interest offered by commercial bank on fixed deposit
should be payable if the authority fails to effect prompt payment (within six months
after the approval of valuation report by the chief valuer).
Similarly, the responses indicate that most of the acquisition projects in KMC delayed
to effected payments of compensation as only one out of seven projects under review
ended up paying within six months as indicated in Table 4:5 below. The project in
which payment of compensation was within the limits of time (prompt) operated
39
The Land Act, No. 4 of 1999 [Cap 113, R.E.2019] & The Land Acquisition Act, No. 47 of 1967
[Cap 118, R.E.2019].
40
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019].
41
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019].
35
under the arrangement of Public Private Partnership (PPP) between the then Kahama
Town Council and UTT (Unit Trust of Tanzania).
Act. This type of claim is referred to as the claim for betterment which entitle
payment of compensation for the Local government implementing a development
scheme shortly after three years of completion. This is not the same as the claim for
compensation of orphanage land which occurs when the remaining land is so small or
so badly shaped and is incapable of reasonable development as per section 61(1) of
Urban Planning Act.43 The issue of orphanage land is similar to the provision of
section 10(1) of the Land Acquisition Act by directing that if the remaining land
located outside the boundary of any city, municipality or township is less than half an
acre (literally half the size of the land) and is deemed as being inter-related land, the
occupier may insist on same being taken.44
On the other hand, malpractices of the officials and PAPs are a great challenge in
implementation of Land Acquisition for urban expansion. There is allegation of lack
of integrity particularly against the Valuers which are based on lack of transparency
in the process. The allegation is said to be exaggerated by community and non-
government organizations which always appear to side with PAPs in the subject area
during and after the land acquisition process (Komu, 2014). Also, there are cases
where PAPs were found to plant crops and probably develop their lands by permanent
structures even if the order to stop any development has been issued. The motive
behind this is to inculcate the valuers to appraise the developments as part of
compensable items. The magnitude of this challenge remains unknown and there is a
need to designate a specific study as this is out of the scope of the study.
43
The Urban Planning Act, No. 8 of 2007.
44
See, Section 10 of the Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E. 2019].
38
that payment for the land acquired for public purpose must be made by the
government through the Land Compensation Fund provided under section 173 of the
Land Act.45
Evidence suggests that most of Local Government Authorities face the same
challenge as at the time of conducting this study, the government has not established
the Trustee to manage the Fund. The Fund is designed to provide compensation to
PAPs or any other person who suffers a loss or deprivation or diminution of any
rights or interests in land or any injurious affection in respect of any occupation of
land. The access to the Fund by Local Government Authority or any other
government organisation is through the commissioner for Land. The commissioner is
vested with powers to receive claims for compensation and submit together with the
compensation schedule to the Fund which has the right to accept or refuse to pay.46
It is even challenging for local government authorities when administering payment
for the removal of gravels from the land taken for public purpose. Thus, the Graves
(Removal) Act, provide for compensation in certain cases and the scope of
compensation payable is limited to the reasonable expenses incurred in the removal,
transportation, reinstatement and re-interment of the graves or dead body. The
absence of standardized/national framework for payment of compensation for the
removal of graves has led every Local Government Authority to administer the
procedures at its own conveniency. In practice, the removal of graves or other
traditional properties involves costs relating to all necessary ritual ceremonies during
implementation of land take. The issues are how much is payable for which activity?
45
The Land Act, No. 4 of 1999 [Cap 113, R.E. 2019].
46
Government Notice No. 79 published on 4/5/2001.
39
and even the President on basis of political platforms. The second is through
adjudication where the dissatisfied person(s) can institute a civil suit in the High
Court in respect of proceedings involving the Government, sec. 37(1)(c) of the Land
Dispute Courts Act.47
However, the law does not provide for time limit for lodging the complaints, but
some proceedings are subject to the Law of Limitations Act.48 Lack of a Framework
for handling post payment claims (disputes) provides room for elongated
consultations by NGO and social activists. Also, most of administrative actions
contravene legal provision and allows for overlapping and contradicting of decision
given by different institutions.
Accordingly, the survey for this study found 4 disputes relating to land acquisition
which were decided ex-parte by the Ward Tribunals in Kahama. The Malunga Ward
Tribunal decided 3 cases while the Mhongolo has 1 case. The cases involved the then
Kahama district council and Kahama Town Council between 2011 and 2016 as
respondents. Though, accurate data was not available in other tribunals to grade this
indicator, still this can describe that some members of ward tribunals in the country
could not appreciate the limits of their legal mandates. The power to adjudicate land
acquisition disputes in respect of proceedings involving the Government (local
government authority) is vested to the high court as its original court.
In contrast, a review of literatures provides that in 2016 compensation disputes
accounted for 19 percent of land-related disputes in Tanzania. There was an increase
of compensation cases from 11,000 per annum in 2011 to 43,000 in 2015 which
implies weakness in the procedures for administration of land acquisition in the
country (Komu, 2016).
The table below (Table 4:6) provide a general summary of disputes observed in
various land acquisition projects in Tanzania.
47
The Land Dispute Courts Act, No. 2 of 2002 [Cap 216, R.E. 2019].
48
The Law of Limitation Act, No. 10 of 1971 [Cap 89, R.E. 2019].
40
Table 4:6 Records and Reasons for Land Acquisition Disputes in Tanzania
S/N Reasons New Road Resettlement Rail Yard Wayleave
Urban Use (2007) Hosts (2010) (2011) (Gas) 2013
(2002)
1 Inadequate 3 53 7 156 75
4 Others/graves 24 23 0 21 67
49
Extracted from a paper presented by Dr. Felician Komu at FIG working week on 2-6 May, 2016.
Christchurch, New Zealand.
50
Komu, F. (2016); Compensation Assessment for Land Acquisition: The Dichotomy of National
Laws and Development Partners Resettlement Requirements. A paper presented at FIG working
week on 2-6 May, 2016. Christchurch, New Zealand.
41
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0 Introduction
This chapter presents a summary discussion of findings, a conclusion, and
recommendations based on the research objectives. Also, the chapter presents the
policy implication of the study and avenues for further research.
also confusion on what interest to pay for the delay of payment of compensation. The
position of the Land Acquisition Act, which is the superior statute in regard to land
acquisition and payment of compensation is that interest for late payment should be 6
per cent per annum. Any other rate payable as interest for delay of payment of
compensation is against the law.
The study observed further that there is no national framework for the administration
of land acquisition procedures. The absence of a national framework for the
administration of land acquisition makes it difficult for KMC and other Local
Government Authorities to effectively and efficiently implement land take in
Tanzania. The irregularities envisaged could make the entire process of land
acquisition myth and unlawful and could easily be questionable in courts of law.
Also, there are uncoordinated handling of post-payment claims. The claims relating to
land acquisition for public purposes are in practice been handled by different
authorities which makes it difficult for authorities to integrate and estimate the
magnitude of its severity. The requirement to institute legal action against the
government in regard to land acquisition and payment of compensation is that all
disputes must be instituted as a civil suit in the High Court as the original court. This
requirement is difficult to implement because most PAPs are even not aware of it and
the land acquisition project affects people in rural areas who cannot easily afford
representation to the High Court.
In nutshell, there is no comprehensive resettlement policy that could address and
facilitate the implementation of the Resettlement Action Plan (RAP) during
compulsory land acquisition. The government has been hesitant to have a national
resettlement policy despite most donor-funded projects which involve land
acquisition tend to observe the World Bank Operational Policy 04.12 on Involuntary
Resettlement alongside the local guidelines. The use of the two approaches tends to
contact each other as the practices are much more different in ascertaining the values
of compensable items.
authorities in urban areas. It focused on the way legal powers were exercised during
the implementation of land acquisition for urban expansion. The study further
examines the actual processes adopted by the Kahama Municipal Council to embark
on the challenges of urban agglomeration. Also, the study has dwelt into evaluating
the challenges faced by Local Government Authorities during the implementation of
land acquisition assignments for urban expansion in Tanzania.
It is evident, therefore, that land acquisition has become the most frustrating issue for
many landholders in peri-urban areas in Tanzania. This has resulted in constant and
perpetual protests and disgraces in almost all urban areas in the country. These claims
do not threaten Local Government Authorities in their attempt to plan for expanding
urban boundaries but also damage the social and economic progress of the country.
Many protests get the attention from even foreign entities, such as the World Bank
especially in those projects financed by the funds from the bank, the human rights
activists who dare even to join the protests through courts of law to protect the
interests of landholders, should the authorities fail to resolve the disagreements
amicably.
Meanwhile, the study has established a proposition that summarizes the relationship
between the authorities and the landholders regarding practices during administration
of land acquisition. The underlying assumptions are that the authorities must conduct
their affair while respecting principles of natural justice and their practices should be
within the limits of existing legal regime. Thus, a theory on land acquisition is hereby
established that “As long as the Authorities involved in land acquisition processes do
not conduct or practice their affairs based on principles of natural justice and within
the ambits of existing laws; there will always be conflicts between land holders
(PAPs) and the Authority(ies)”. The study, therefore, recommends that: -
The Minister should also provide for reforms of statutes to harmonize the
contradiction that exist between the Valuation and Valuers (registration) Act, No. 7 of
2016 and the Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019] on the issue
of delay and the rate payable as interest on late payment of compensation. The
Valuation Act, provides that the rate shall be computed at the average of interest rate
of commercial banks payable on fixed deposit. This provision is inconsistent to the
Land Acquisition Act, which provide a statutory rate of just 6 percent per annum. The
same for timeline used to compute the delay; the study has found that computing
based on the date of approval is inappropriate because the PAPs are denied the right
to develop since publication of notice to yield and power to take possession which is
far earlier than the date of approval of valuation.
However, the position of the researcher on issue of computation of delay is similar to
the provisions of the land acquisition Act. The notice to yield possession should serve
to commence the acquisition process as it has legal implication of restricting any
further development to the subject property. In other words, it takes back the
occupational rights (usufructuary rights and deny the enjoyment of peaceful
possession). In regard to interest payable for late payment of compensation, the
researcher suggests that payment should be computed based on market value similar
to what is provided under section 52(5) because the basis of assessment and payment
of compensation is market value.
Lastly, land acquisition as an element of land administration is confined to provisions
given by the Land Act, Cap 113 which has incorporated the fundamental principles of
land policy. The position of section 181 of Land Act, Cap 113 renders the legal
provision of section 15 of the Land Acquisition Act ineffective as it is contrary to the
provisions of Regulation 3 of GN. No 78 of 2001 which clearly states that “the basis
for assessment of the value of any land and unexhausted improvement for purposes of
compensation under the Act (The Land Act) shall be the market value of such land.”
The World Bank through the International Finance Corporation (IFC) introduced
Performance Standards on Environmental and Social Sustainability which became
effective in January 1, 2012. The IFC Performance Standards are mandatory
requirements for the party responsible for implementing and operating the project that
is being financed, or the recipient of the financing, depending on the project structure
and type of financing from the world bank group. Generally, there are eight (8)
Performance standards as indicated in table 5:2 below.
Even though in practices there have been projects that have implemented
Resettlement Action Plans (RAPs) in most of projects financed by international
financial institutions including the World Bank, the IMF, and the AfDB; there has
been a dilemma as to whether the implementation of RAPs and Resettlement Policy
on project based in Tanzania has legal mandate or not? The answer to that is based on
the position given by Regulation 10 of GN. No. 79 of 2001. The regulation provides a
flexibility, however, at the discretion of the government that payment of
compensation be in the form of other than money, i.e., - (a) plot of land of
comparable quality, extent and productive potential to the land lost; (b) building or
51
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APPENDICES