synoptic table of Village land act, 1999
Sect.
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village land act 1999
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SYNCHRONISATION
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Ref.
to other statute
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explanatory
remarks
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clause to clause Commentary
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james & fimbo
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1.
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Short title and commencement
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Follows the usual
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2.
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Interpretation
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Amendment of the word “Court”
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Delete the word “immediate family” &inserted
under new clause 10(2)
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Definitions from other
Tanzanian laws have been used. Words
and phrases already defined in the Interpretation of Laws Act, No.
4/1966. Some definitions are of words
in everyday use.
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3.
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Fundamental Principles
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The principles set out are
the same under cl. 3 of Draft Bill Land Act 1998. Both clauses recognise right of
compensation. All land is public land under the control of the President
referred S. 3 & 4 of Cap. 113 (Repealed) where by paying of compensation
is recognised under A. 24 (2) of the United
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Amendment of sub-clause against Bill Supplement.
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Delete of sub.cl (3)
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Amendment of sub. cl. (2)
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The principles set out in
Cl. 3(1) are drawn from NLP. Sub. Cls.
(2) and (3) flesh out NLP 4.2.6 and takes account too of Articles 13 and 24
of the Constitution. It is designed to
make a comprehensive statement about the rights of women to obtain occupy and
hold land and to reaffirm that any such land so obtained and held in the name
of a married person. Sub. Cls. (3)
gives effect to the revision of NLP 4.2.6 (i)
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4.
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Transfer of
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Equivalent to cl. 5 of
Draft Bill for Land Act 1998 empower the President to transfer
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Delete of the word “and vice versa”
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Instead of 60 days, now it is ‘90’ days under sub.
cl. (3) (d).
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Delete of sub. cl. (6) (a) (b) & (c)
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SS.6 & 7 CAP 389
S. 103(3) ACT NO. 7, 1982
S. 6 ACT 1999
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This clause provides protection to
village land by building on the NLP’s recognition of it as separate from
general land. Also it ensures proper
consideration is given to any proposals to take land away from villages and
that full compensation is paid to those who suffer losses. Sub. Cl. (7) provides for various levels of
public input into decision to transfer village land. Sub. Cl. (8) ensures that village land is
not taken away from the village until all compensation arrangements have been
settled.
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James & Fimbo pg. 42-49 in Customary
Land Law of Tanzania provides that when an areas is gazetted by the
Government as forest reserve, the area ceases to be considered as tribal
land, its use will be regulated by the statutory provisions and not by rule
of customary land tenure i.e. becomes alienated land.
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In the case of Peter Mashauri v. R. 1968. James
& Fimbo pg 47-48 the appellant was disagreed with cutting and
damaging Mkwambaki trees on unreserved land and burning them without licence
or other lawful authority contrary to S. 18 (1) & 26 () of the Forest
Ordinance Cap. 389. It was held
that the areas in which the offence was allegedly committed was not within
the ambit of S. 3 of GN 73 of 1959 nor are Mkwambaki trees within the ambit
of S. 2 of that order which reserved in respect of all unreserved land
throughout the territory trees which are specified in Part A of the schedule
to that Order the appeal was allowed.
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5.
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Transfer of General Reserved Land to
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Equivalent to cl. 6 of
Draft Bill for Land Act. Both sections deal with the transfer of General
Reserved land to
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S. 6 ACT 1999 sets out categories of
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6.
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Declaration of Hazard land
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No changes, equivalent to
cl. 8 of Draft Bill for Land Act. both
provides a mechanism for declaring land to be hazard land.
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Adding of ‘coral reefs” on sub. Cl. 3(a)
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Additional on the following words under sub. cl.
(3)(b) offshore islands in the sea & lakes
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S. 2 ACT No. 19, 1983
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ACT No. 3, 1984
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Mechanism for declaring
land to be hazard land are drawn from NLP statements 7.9.0 and 7.9.1. The NLP does not state what are hazard
lands so use has been made of ideas contained in various UNEP and other
environmental publications.
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7.
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Village land
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No changes. Equivalent to
cl. 57 of Draft Bill for Land Act.
both set out what is village land.
it provides for the settlement of disputed about boundaries. Set up mechanisms for the settlement of dispute
between villages and between villages and other land occupier.
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S. 3(1) ACT No. 7, 1982 provides that Village
means a village registered as such under this Act.
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S.2 ACT No. 27, 1965
(Repealed) provides what is village settlement.
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S. 2 ACT No. 21 1975
(Repealed) provides what is village land.
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S.2 ACT No. 22, 1992 provides what is village land
means and includes all the land with the boundaries of any village
established as the result of Operation Vijiji whether or not such area has
been registered as a village in accordance with S. 22 of the[Local Govt.
District Authorities Act No. 7 1982].
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8.
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Management of village land
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No changes. Similar to clause 58 of Draft Bill land Act
1998. Both provide for the management
of village land and set out the basic principles, which must guide that
management. The village council is a
trustee of the village land and may be sued as such. The council must consult
with certain bodies outside the village and make regular reports to the
village assembly.
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Amendment of sub. cl. (5) (6) & (7), (8) (9) (10) & (11)
& (12)
Insert new sub-cl. (7) now (8) it requires the District Council to
make recommendation after consulting the Commissioner for land.
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S. 142 Act No. 7, 1982 provides functions for the
village council in respect of all the affairs and business of a village land.
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S. 12of the same Act empower Village Assembly and
Village Council to be responsible for the management of
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9.
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Advice by the District Council
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S. 11(3) act, 1999
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Attempt to meet the NLP,
policy statement at 4.2.2 that the Commissioner of Lands shall be the sole
authority responsible for land administration, he may delegate his
functions. Sub. Cl. (2) provides that
guidance given by a district council shall not contradict or conflict with
any directive or circular issued by the Commissioner under sub-section (3) of
section 11 of Act 1999.
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10.
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Conflict of interests
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Insert new sub-cl. (1) & (2)
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s. 15 act, 1999
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11.
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No changes. Similar to
clause 59 of Draft bill for Land Act.
both provides for joint village land use agreements between villages
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This clause attempts to
deal with the issue which arises quite frequently of conflicting land uses
between villages. Potential disputes
are resolved by traditional leaders or mutual accommodation between land
users and this clause recognises that and provides for village sanction. Village councils and assemblies can use the
mechanism and build on traditional ways of solving such land disputes.
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12.
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Division of village land
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No changes, similar to
clause 60 of Draft Bill for Land Act.
Both provide for the division of village land into “communal village
land.”
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s. 9 act no. 27, 1965 (Repealed)
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It is shown from NLP policy statement
4.2.28.
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13.
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Communal village land
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No changes, equivalent to
clause 61 of Draft Bill for Land Act. Both clauses provide for communal
village land.
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Under Sub. cl. (3) the
District Council has power to provide advice and guidance to village council.
The National Land Use Planning Commission is taken out of that power.
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In James and Fimbo
pg. 70-73 provide that any member of the land owning community may occupy
unallocated (arable land) for he is deemed to have permissive right of
occupancy.
Haya law, there is a
certain amount of cultivation done on free land i.e. where there is free
unoccupied land in a village no objection is made if the villager use it for
seasonal crops. That they do so confers on them no title to the land and no
right to demand its use in future.
Under Chagga law, communal land
is under the control of the land allocating authority. Occupation and cultivation
of such land does not pass ownership but the land is available for allocation
or allotment and occupation without permission is illegal.
In the case of Siyanga
Kisarika v. Ngatusi (1953) Digest 15. It was held that a man has no right over
land unless the Chief has given him that land.
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14.
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Land which is or may be held for customary right of occupancy
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Equivalent to cl. 62 of
Draft Bill for Land Act. Both sections
set out what land is or shall be deemed to be held for a customary right of
occupancy.
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Delete of sub-clause (I)
& (ii)
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S. 2 cap 113 (Repealed)
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S. 19 ACT 1999 gives declaration of customary
right of occupancy.
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S. 6 CAP 389 declared an area to be a forest
reserve.
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S. 8 CAP 413
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CAP 412
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S. 5 CAP 338
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Apart from village land and
general land occupied under a deemed right of occupancy, two other categories
of land are provided for. Land occupied as a home in urban and peri-urban
areas and so occupied for 10 of the last 12 years; and land lawfully occupied
in areas of reserved land. Such persons will be entitled to compensation when
their land is compulsorily acquired.
This is in line with NLP, policy statements, 4.2.22(iii) and
6.3.1. The effect of stating that
persons lawfully occupying land in reserved areas have a customary right of
occupancy will be entitled to compensation if they are moved form their
land. This is in line with the case of
A.G, v. Lohay Aknonaay 1994 (unreported).
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15.
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Confirmation of validity of interests in land created under and by
Operation Vijiji
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No changes, similar to cl.
63 of Draft Bill for Land Act. Both
sections provide for conformation of validity of interests in land created
under and by Operation Vijiji.
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The Village Council shall
refer the matter to the Village Land Council instead of Elders Council under
Sub. cl. (9)
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S.2, 3 act no. 22, 1992
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s. 2 act no. 21, 1975 (Repealed)
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S. 145 ACT No. 7, 1982 provides that Minister may
designate a village as an
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This clause replaced the
amendments to the Regulation of Land Tenure (Established Villages) Act 1992
passed in 1995. The clause deals with
the issue of compensation in respect of losses and hardship caused by
operation Vijiji.
Refer James & Fimbo pg
125-135.
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16.
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Conformation of validity of allocations of land made by Village
Councils since 1st day of January 1978.
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No changes, equivalent to
cl. 64. Both sections provide for confirmation of validity of allocations of
land made by Village Council since 1st day of January, 1978.
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Act No. 21, 1975 (Repealed) Under GN 168 published on 22/8/1975. in Sub (4) of S. 23 providing directions to
the Village Council under the Act providing for the allocation of land in
villages. The land for the village was
to be allocated by the District Development Council. The Village Council in
turn would allocate each household a piece of farmland and an acre of land
for dwelling house. An allottee could
not dispose of this land without the approval of the Village Council.
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The clause established
mechanisms, an institution, procedures and principles for dealing with
compensation claims arising out of hardship and loss caused by Operation
Vijiji. Claims must be submitted before 1 January 2000 to bring about
finality to the whole process.
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17.
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Occupation of village land by non-village organisation
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No changes, equivalent to
cl. 66 of Draft Bill land for Land Act.
both set out categories of occupation of village land by non-village
organisation.
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S. 37 of ACT 1999 empowered
the Commissioner to consider and approve categories of dispositions of land.
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S. 9(i)(c) of ACT No. 27 of 1965 (Repealed) state
condition to any person who is not a member of that society whereby he may be
granted licence or lease at the expiration of two months from the date of the
grant.
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S. 3 of CAP 375 provides for grant of certificate
of incorporation to the association.
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Deals with the occupation
of village land by what are called non-village organisations. This clause caters for what is or may be on
the ground at present. Non-village
organisations will continue to hold their land under the existing title,
granted right of occupancy and the Commissioner continues to manage that
granted right but may delegate his function.
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18.
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Incidents of customary right of occupancy
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Delete of the following
word: sub.cl. (1) (b) “
Sub-cl. (1) (d): “including
intestate succession”
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ss. 2, 13 of cap 113 (Repealed)
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S. 4 ACT 1999
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The clause declare
expressly customary and granted right of occupancy are equal status.
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Various legislation extinguished customary right
of occupancy. For example Villages & Ujamaa Villages (Reg. Degn. &
Adm) Act No. 21, 1975, Land Acquisition Act No. 47 of 1967. Town & Country Planning Ordinance Cap.
378. Regulation of Land Tenure
(established Village Act, 1992).
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In the case of Christopher Mbote Nyirabu v.
Methusalah Nyagaswa [1980] TLR. It
was held that a right of occupancy granted under CAP 113 does not extinguish
another person’s deemed right of occupancy over same plot.
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In the case of NAFCO V. MULBADAW VILLAGE
COUNCIL & OTHERS [1981] TLR it was held that no right can validly be
granted over a piece of land which is already held under customary law unless
it is revoked or acquired under the Land Acquisition Act, 1967.
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In the case of Yoke Gwako v. NAFCO [1988]
TLR Mroso J. Said that “once it is found that the plaintiff held customary
land titles for their respective parcel of land such titles are as good as a
granted right of occupancy so neither is superior to the other.”
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19.
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Incidents of customary lease
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Read together with the provisions of
Part IX of the LAND ACT, 1999
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ACT No. 1, 1965
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ACT No. 47, 1968
The latter ACT has repealed the 1965 Enfranchisement Statute. It prohibits the creation of any new
landlord and tenant relationship in areas where it is brought into force
under S. 4.
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Refer James & Fimbo,
pg. 365-380.
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20.
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Law applicable to customary right of occupancy
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No changes, equivalent to
cl. 67. Both clauses set out the law
applicable to customary rights of occupancy.
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“a non village
organisation” is deleted under sub.cl. (1)
Insert new sub.cl. under
refers to women, children and the disabled.
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S. 2CAP 113 (Repealed)
S. 9 CAP 453
S. 4 of ACT 1999
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The clause based the logic
of the NLP that customary law applies to land held by individual and families
in the village. The general law
applies to customary rights of occupancy.
The clause also protects women, children, or persons with disability
lawful against discrimination on ownership, occupation or use of any such
land.
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21.
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Register of
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No changes equivalent to
clause 68 of Draft Bill for Land Act.
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Under this Act the Village
Executive Officer is responsible for keeping the register of village.
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S.22 ACT 1982 No. 7 of 1982
provides for registration of villages unless until the Registrar is satisfied
that a prescribed number of household have settled.
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S. 4 of ACT No. 21, 1975 provides that unless
until 250 kayas have settled.
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The clause based the requirements of NLP, Policy
Statement 4.2.22 (IV), (VI) (VII).
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The Act does not amount to vesting any ownership
rights in the village as was observed in Methuselah Paul Nyagwaswa v.
Christopher Mbote Nyirabu [1985] TLR- 103.
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22.
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Application for customary right of occupancy in village land
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No changes, equivalent to
cl. 69 of Draft Bill for Land Act 1998. Both clauses set out categories of
person who may apply for customary right of occupancy. Individual families
& groups may apply for same.
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S. 9, CAP. 113 (repealed)
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The procedures are similar
to those in Section 25 of The Land Act 1999.
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Cap 113 did not provide procedure or machinery for
the allocations of land since land are vested by President.
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No application for a customary right of occupancy
rather there was an allocation. The
body for allocation was District Development Committee now it is the Village
Council whereby any person may apply for a customary right of occupancy. Refer. James & Fimbo pg. 68-70.
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In
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23
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Determination for a customary right of occupancy
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No changes, equivalent to
cl. 70 of Draft Bill for Land Act.
Both set out provisions and principles for determining an application
for a customary right of occupancy.
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Amendment of Sub-clause (2)
(d).
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The first applications from
villagers, the village council will usually just follow the determinations of
the adjudication body subject always to compliance with sub cl. (2) (c). Application from villagers, who already
have village land, sub. Cl. 2(e) set out criteria to be used to determine
whether such person should obtain more land. Sub. Cl. 2(d) and (f) provide
for applications from non-villagers and non-village organisations. The rationale for this is to ensure that
land is being obtained for productive use and not just for speculative
purposes.
The NLP, Policy Statement
4.2.4 (iii) and (iv) rule out any foreign company obtaining rights to land in
villages. The NLP does not provide any
policy reason why a village council should not deal directly with a village.
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24.
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Contract for a customary right of occupancy
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No changes, equivalent to
cl. 71 of Draft Bill for Land Act. Both provide for a contract for a
customary right of occupancy. The
offer is made to an applicant who must accept that offer.
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Sub. cl. (5) deals with the
matter of corruption in respect of the grant of a customary right of
occupancy. It is concerned to
invalidate any such transaction or occupation arising out of such transaction.
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25.
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Grant of a customary right of occupancy
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No changes, equivalent to
cl. 72 of Draft Bill for Land Act 1998.
Both provide the mechanisms for the grant of a customary right of
occupancy and equates such a right in terms of its creation and legal status
to a granted right of occupancy.
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Delete of sub-clause (3)
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The clause is based on NLP; Policy Statement
4.1.1. (VI) and (VII).
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There no issue of certificate of customary right
of occupancy. The Village Land Act
1999 settled the issue of land allocating bodies. Prior to the enactment there was an absence
of uniformity of land allocating bodies under customary system. Because of
the fact that different bodies were concerned with allocating land.
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In James & Fimbo pg. provides that
North Mara, Village Development Committees exercised the function of land
allocation. In the Arusha and Meru
District the Natural Resources Committees (Land Committee) carried out
allocation. The absence of rules
laying down norms for these bodies led to misuse their powers.
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26.
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Payment of premium on grant of customary right of occupancy
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No changes, equivalent to
cl. 73 of Draft Bill Land Act. Both
provide for payment of premium for a customary right of occupancy.
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Delete of sub.cl. (1). This section provides for payment of
premium on grant of a right of occupancy to a non-village organisation.
The word “customary right
of occupancy” is deleted, now it is certificate of right of occupancy under
sub-section (4).
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S.7, CAP. 113 (Repealed) empowered President to
require the payment of a premium on the grant of a Right of Occupancy.
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Sub-clause of Village Land Act read together with
S. 31(3) of Land Act 1999.
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S. 31 of ACT of 1999 provides for the payment of a
premium on the grant of a Right of Occupancy.
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Non-village organisations and non-villagers may be
required to pay a premium for a customary right of occupancy. Similar criteria to those applying to
premium for granted rights of occupancy are used in determining the amount of
any such premium.
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In James & Fimbo pg. 73-74 provide that
“It is a customary among the Bahaya for the allottee to pay a fee as a
consideration of the grant. This is called “Kishembe” and in former times it
was paid in kind. In any conflict as
to whether permanent or temporary rights wee granted, proof of payment of the
customary fee is more or less conducive as to the nature of the grant.
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Among the Chagga, these appears to be no
obligation to pay a fee but it is not uncommon for a gift (Upare – a cow for
slaughter) to be made on the allotment. This fit in Upare is called Mbuta and
takes the form of beer.
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27.
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Length of term of customary right of occupancy
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No changes, equivalent to
cl. 74 of Draft Bill for Land Act.
Both provide for the length of the term of a customary right of
occupancy. It may be indefinite
duration.
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Sub-cl. (1) (b) is deleted.
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S. 6 of CAP 113 (Repealed)
S. 32 ACT of 1999
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The clause is based on NLP,
Policy Statement 4.1.1 (VIII).
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28.
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Rent
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No changes, equivalent to
cl. 75 of Draft Bill for Land Act. Both provide for the payment of Rent.
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Insert new sub-clause
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SS 7, 11, 15, CAP 113 (Repealed)
S. 33 ACT 1999
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Rent is not payable by villagers, but will usually be payable by
non-village organisations and non-villagers.
The provisions of this section are broadly similar to S. 33 of Land
Act 1999.
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29.
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Conditions
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No changes, equivalent to cl. 76. Both
sections provide for conditions subject to which customary rights of
occupancy are to be held. Conditions may be prescribed but until such time as
they are set in sub. cl. (2) will apply.
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S. 34 ACT 1999 provides for
conditions.
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SS. 14, 14A, 14B, CAP. 113
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S. 170 of the same Act provides for right of entry
enters on the land.
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S. 6 Regulation, 1948
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S. 5 Act No. 44, 1969 provides for premiums,
rents, fees and other terms and conditions.
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S. 5, 6 ACT No. 18 1963, CAP 518.
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The conditions in paragraph (a) are drawn from S.43 of the Freehold Titles (Conversion) and Government Leases
Act. The other conditions are fairly
general.
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Ref. R.W. James: Land Tenure and Policy in
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Ref. James & Fimbo: Customary Land Law
of Tanzania pg 31, 471, 666, 647, 645
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30.
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Assignment of customary right of occupancy by villager
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No changes equivalent to
cl. 77. Both deal with the assignment of customary rights of occupancy by
villagers.
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SS 131-133 act 1999
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The section is based from NLP. The assignments may only be made within the
village community but persons wishing to move into the village or to start some commercial or other enterprise
in the village and providing evidence that they will in fact move in or start
the enterprise may also take an assignment of land from a villager. Permission will not be required for an
assignment but the village council must be notified of an impeding assignment.
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Ref. R.W. James: Land Tenure and Policy in
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31.
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Approval required for private disposition of derivative right
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No changes, equivalent to cl. 78 of
Draft Bill Land Act. Both provide
approval for private disposition of derivative right.
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S. 11 of ACT No. 27 of 1965 (Repealed) deals with disposition
intervivos that there must be approval of the commission or prior approval
the society.
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Sub clause (4) exempts some transactions from the
need for approval from the village council.
Other disposition to non-villagers will need approval.
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Ref. James & Fimbo pg 109.
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32.
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Grant of derivative right by village councils
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No changes, equivalent to
cl. 79 which deals with the grant of a derivative right by the village
council.
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Inset the word approval
under subsection (4) (b) and (c)
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S. 9(1)(a) (b) (c) ACT No. 27, 1965 (Repealed) provides for grant of
derivative right where by the Commissioner is responsible society.
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The section is based on the requirements of NLP in
that it allows village council to lease land to non-village organisation,
public and private, national and foreign.
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James & Fimbo pg. 107.
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33.
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Criteria for determining application for approval for or a grant of a
derivative right
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No changes, equivalent to
cl. 80 of Draft Bill Land Act. Set out
the criteria to be followed in determining whether to give consent to a
disposition of a derivative right.
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The section pay careful
attention to concerns about women and disadvantaged groups expressed in the
NLP.
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34.
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Duties of a grantee of derivative right
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No changes. Equivalent to cl. 81 of Draft Bill Land
Act. Both set out the basic duties of
the grantee of a derivative right; pay all fees, rents taxes. Observe the
conditions of the derivative right observe all the by-laws and directives
applicable to the land. Failure to comply with these duties may lead to
termination of the derivative right.
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S. 9(2) (a) (b) ACT No. 27 of 1965 (Repealed)
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Refer: James & Fimbo pg. 107
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35.
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Surrender of customary right of occupancy by villager
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Provides for surrender of
customary R/O by villager. Under Draft
Bill Land Act divides into 2 clauses:
(i)
Under cl. 83 there is surrender of customary R/O
by non-village organisation
(ii) Under cl. 84
deals with surrender of customary R/O by persons ordinarily resident in a
village while under VLA 1999. S. 35
both combined under that section that “a villager or group of villagers or any
other person or persons holding a customary R/O. Any other person /persons imply non-village
organisation
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s. 42 act 1999
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36.
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Regrant of surrendered customary right of occupancy
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Equivalent to clause 85 of
Draft Bill Land Act 1998. Deals with
regrant of surrender of customary right of occupancy regrant of women
dependants get 1st offer/priority.
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The section provides that a
surrendered customary right of occupancy may be re-granted and sets out the
persons who are to have first refusal of that right of occupancy in any such
re-grant.
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37.
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When breach of condition of customary right of occupancy arises
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Equivalent to cl. 86
provide when breach of condition of customary right of occupancy arises
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S. 44 ACT 1999 provides when breach of condition of Right of
Occupancy arises.
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Follow S. 44 Act 1999 with
the addition that failure to follow bye-laws applicable to the village where
the land is situate or to comply with rules of customary law may also amount
to breaches of conditions.
S. 44 provides when breach
of condition of R/O arises. In James
& Fimbo pg 560-561 provide that among the Sukuma, Nyamwezi
& Gogo effective cultivation is a condition of land holding or
security of occupancy. It is a
condition of the grant of occupational rights to land that not only should be
the grantee not misbehave but he must also utilise his holding according to
rules of good husbandry. If no effective cultivating the occupier was
regarded has breached the conditions (NEGLECT).
Among Arusha, Sambaa &
Haya effective land cultivation is not a condition of the land tenure system.
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38.
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Remedies for breach of condition
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Both clauses are the same
provide remedies for breach of condition.
Equal to cl. 87 of DRAFT
BILL LAND ACT.
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S. 45 Act 1999
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The section broadly follows
S. 45 of Act 1999. The range of
possible remedies is greater; the Commissioner is empowered to give advice to
village councils about their exercise of powers. It is clearly in the interests of both
fairness and efficiency that there is as much uniformity of implementation of
these powers between villages.
In James & Fimbo pg
561-562 in the case of Akosi Lengeria v. Thomas [1953] Digest No. 17
It was held that A Mangi, by Chagga
law, can allocate a “Kihamba cha asili” to another man if the acknowledged
owner leaves the mangiate or deserts the Kihamba.
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|
39.
|
Remedies in accordance with customary law
|
Equal to cl. 88 provides
remedies in accordance with customary law. An occupier must be told of the case against
her/him and have an opportunity to put her/his point of view. Where the customary law remedy may deprive
the occupier of her/his land the commissioner must assent to the exercise of
that remedy.
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- “ =
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||
40.
|
Fine for breach of condition
|
Equivalent to cl. 89 of
Draft Bill for Land Act. Both provide
fine for breach of condition.
|
s. 46 of act 1999
|
Follows S. 46 of Act
1999. The NLP makes it clear that
occupation depends on productive use.
The Presidential Commission was of this view too.
|
|
41.
|
Summary action to remedy breach of condition
|
Equivalent to cl. 90
|
s. 47 act 1999
|
Following S. 47 of Act
1999. Provides for the Commissioner to
serve a notice on the occupier requiring the breach to be remedied.
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|
42.
|
Supervision order to remedy breach of condition
|
Equivalent to cl. 91 of
Draft Bill Land Act. Both provide for
supervision order to remedy breach of condition.
|
The supervision will be by
a village officer or an officer from higher local authority or from central
government. The supervising officer
produces a report at the end of the period of supervision.
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||
43.
|
Temporary assignment of customary right of occupancy on account of
breach of condition
|
Equivalent to cl. 92. Both provide for temporary assignment of
customary right of occupancy on account of breach of condition.
|
A temporary assignment may
be for as little as one year or for as long as the remainder of the life of
the villager in question. Subsection
(9) sets out very precisely to whom and in what order the customary right of
occupancy is temporarily assigned.
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||
44.
|
Revocation of customary right of occupancy
|
No changes. Equivalent to
cl. 93 of Draft Bill for Land Act. Provide for revocation of customary right
of occupancy.
|
Under Sub-clause (1) the
President is empowered to revoke a customary right of occupancy
|
ss 48, 49 act 1999
|
Deals with the revocation
of a customary right of occupancy granted to a non-village organisation. Such
a revocation is handled by the Commissioner and follows the provisions of S. 48 and 49 of
Act 1999 dealing with the revocation of a granted right of occupancy.
|
45.
|
Abandonment of land held for customary right of occupancy
|
Equivalent to cl. 94 of
Draft Bill Land Act provide for abandonment of land held for a customary
right of occupancy.
|
s. 51 act 1999 provides for abandonment
of land held for a Right of Occupancy.
|
The village council is
required to take account of certain factors including customary practices on
non-use of land in determining whether there is a prima facie case that has
been abandoned. Publicity must be
given both to the reconsideration by the village council of whether land has
been abandoned and to a provisional order of abandonment. Once a final order of abandonment comes
into force, the land is available for allocation to other people in the
village.
S. 51 provides for
abandonment of land held for a right of occupancy.
In James & Fimbo
pg 568 provide that the occupier of abandoned land could not acquire title to
it by long possession, for abandoned land reverts to the community for
reallocation and subsequently occupation without permission of the land
allocating authority is necessary permissive.
The 1st occupier
of abandoned land has a right to posses the land, this right is good against
allottees including the former owner.
In the case of Ginonge
v. Chagga [1968] HCD 409
James & Fimbo pg 568. It was said that absence from land for 10
years raises a presumption of abandonment – absence of animus revertendi on
part of holder. When land is abandoned it reverts to the common pool of
property available for redistribution to members of the public seeking
property to develop.
|
|
46.
|
Application for relief
|
Equivalent to cl. 95 of Draft Bill Land
Act 1998 provides for application for relief.
|
107 ACT 1999
|
The section follows S.107
Act 1999 provides for an application for relief against any orders made in
respect of a breach of the conditions of a customary right of occupancy.
|
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47.
|
Appeals
|
Equivalent to cl. 96
provides for appeals.
|
The section provides for an
appeal against an adverse decision of a village council on the matter listed
in the section. The appeal lies to a
district land court. This will provide
a safeguard against any unreasonable exercise of powers by a village council.
|
||
48.
|
C. Adjudication
Application of this sub-part
|
The section provides for
adjudication to precede the grant of customary rights of occupancy except
where there is general agreement within a village as to who has what rights
to what land, including the boundaries to each plot.
Prior for Village Land Act
1999 there was no concept of Adjudication in Tanzania Mainland. This concept has been borrowed from the
Kenyan Land Adjudication. Act 1968 and the Zanzibar Land Adjudication Act
1989 which is based on Kenyan Act.
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|||
49.
|
Spot adjudication
|
Empowered the commissioner
for sport adjudication in Draft Bill Land Act. Under Bill Supplement empowered the
District Council but they are equal.
|
Spot adjudication is not an
ideal solution but is based from NLP which has determined that individual
villagers or families can obtain individual titles, policy statement
4.2.28. The normal practice is for
adjudication to take place over an areas of land occupied by many people. All their rights are sorted out at the same
time.
|
||
50.
|
Village or District Adjudication
|
Equivalent to cl. 99 set
out the two different types of land adjudication. Village adjudication and central
adjudication. The former runs by the village council, the latter by the
commissioner. cl. 99 Draft Bill Land
Act 1998.
|
Sets out the two different
types of land adjudication. Village
adjudication and central adjudication; the former run by the village council,
the latter by the commissioner. The
commissioner is also given intervention powers into village adjudication if
he is requested to intervene by 20 villagers with interests in land which is
being adjudicated. The exercise of intervention powers will bring village
adjudication to a complete halt and substitute central adjudication.
|
||
51.
|
Determination to apply village adjudication
|
They are equal – related to
cl. 100 of Draft Bill Land Act 1998 provide for a Village Council to decide,
either of its own motion or on the application of not less than 50 villagers.
|
|||
52.
|
Appointment and functions of village adjudication adviser
|
Equivalent to cl. 101
provides for the appointment and functions of a village adjudication adviser.
|
The section draws on S. 11
of the Kenyan Land Adjudication Act 1968 (KLAA) setting out the powers of
adjudication officers, adjusted to take account of the different roles of an
adviser and an officer. Such a person may come form either the public or the
private sector and will need legal and/or land based skills and knowledge.
|
||
53.
|
Village adjudication committee
|
Equivalent to cl. 102 Draft
Bill Land Act. Both establish village
adjudication committee and confer powers on them. Such committees are the key
institution in the process of adjudication.
|
Amendment of Sub. cl. (2)
Delete of sub.cl. (5)
|
The section draws on S. 20
KLAA setting out the functions of adjudication committees and S. 10 dealing
with the general powers of an adjudication officer. Committee must comply with the rules of
natural justice and observe fair procedures but subject to that, are given a
fairly free hand to determine their own hearing arrangements.
|
|
54.
|
Procedure for village adjudication
|
Equivalent to cl. 103 of
Draft Bill Land Act 1999. Both set out the procedures for village
adjudication requiring advance notice of a hearing into claims.
|
Sets out the procedures for
village adjudication, requiring advance notice of a hearing into claims, and
the making of a provisional register of all the claims heard and determined
by the committee. Unless an appeal is
made against the provisional register, it will automatically become the final
register 30 days after its publication.
|
||
55.
|
Appeals.
|
Equivalent to cl. 104 of
Draft Bill for Land Act 1998. Both
clauses provide for appeals against a provisional register to the village
medication panel. The panel has all
the powers of a village adjudication committee in hearing an appeal and may
direct a re-opening of any claim for further investigation.
|
An appeal lies from a panel
to a district land court, with leave of the Court.
|
||
56.
|
District adjudication
|
No district adjudication in
the Draft Bill Land Act 1999
|
|||
57.
|
Principles of adjudication
|
Equivalent to cl. 106 of
Draft Bill Land Act 1998.
|
It draws from S. 23 KLAA
and the Zanzibar Land Adjudication Act 1989 but is specifically adopted to
the
|
||
58.
|
Land sharing arrangements between pastoralists and
agriculturalists
|
Equivalent to cl. 107
provides for scheme of co-occupancy between pastoralists and
agriculturalists.
|
Provides a mechanism for
grappling with the difficult issue of conflicting uses of land between
pastoralists and agriculturalists, both of which may have valid claims to
land in accordance with their own systems of customary law. The section
provides for both sets of claims to be recorded and for a scheme of, in effect,
land coexistence to be worked out between the groups through the good offices
and mediation of the adjudication authorities.
|
||
59.
|
Staying of suits
|
Equivalent to cl. 108 of
Draft Bill Land Act 1998.
|
Provides for the staying of
suits in respect of land which is the subject of adjudication. This is an absolutely standard provision in
adjudication legislation which is designed to sort out land rights once and
for all and start again. Adjudication
is a substitute for litigation over land and it would not make sense to have
two running in parallel or in conflict.
|
||
60.
|
Elders council
|
Insert new sub-clause (1)
& (20
Delete of word Elders
Council
|
|||
61.
|
Functions of Elders council
|
Provides for functions of
the village land council.
Elders council is abolished
|
|||
62.
|
References of disputes from Elders Council to Courts
|
Insert new subsection (1)
and (2)
|
S. 18 ACT No. 2 of 1984 Part XIII
|
||
63.
|
Offences
|
s. 178 act 1999
cap. 16
|
|||
64.
|
Corrupt transaction
|
s. 178 act 1999
|
|||
65.
|
Regulations
|
s. 179 act 1999
|
|||
66.
|
Translation
|
s. 185 act 1999 deals also with the Act to
be translated.
|
|||
Abbreviation
Cap. 389
|
|
Act 1999
|
Land act
|
Act no. 19, 1983
|
National environment management act
|
Act no. 3, 1984
|
|
Act no. 7, 1982
|
Local government (district authorities) act
|
Act no. 27, 1965
|
Land tenure (village settlements) act
repealed
|
Act no. 21, 1975
|
Villages & Ujamaa villages (ref. Desg.
Adm) act (repealed) by act no. 7/1982
|
Act no. 22, 1992
|
Regulation of land tenure (established
villages)
|
Cap. 113
|
Land ordinance (repealed)
|
Cap. 413
|
Ngorongoro conservation area ordinance
|
Cap. 412
|
National parks ordinance
|
Cap. 338
|
Public land (preserved areas) ordinance
|
Act no. 1, 1965
|
Nyarubanja tenure enfranchisement act
|
Act no. 47, 1968
|
Customary leaseholds enfranchisement act
|
Cap. 453
|
Judicature & application of laws
ordinance
|
Regulation, 1948
|
Land regulation
|
Act no. 44, 1969
|
Government leaseholds (conversion to rights
of occupancy) act
|
Act no. 18, 1963 cap. 518
|
Rights of occupancy (development conditions)
act
|
nlp
|
national land policy
|
klaa
|
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