Land Rights of the Indigenous Peoples of Tanzania

By Elia Mwanga

Abstract

Indigenous peoples of Tanzania, like indigenous peoples of other African countries, face
different types of marginalization. The rights to their ancestral land, which is an important
element for their survival, are not legally defined in the laws of the Country. Their system of
living is considered to be primitive and threat to the development o the country. That being the
case, forceful evictions from their ancestral land is not uncommon. This article examines the
existing situations of the rights of indigenous peoples in Tanzania and the extent at which the
laws address these rights. The article examines the impacts of the Bill of Rights, which was
incorporated in the constitution of Tanzania in 1984, and the effects of government projects on
the rights of the indigenous peoples of Tanzania. The article also examines the extent at which
the proposed constitution of the United Republic of Tanzania addresses the rights of the
indigenous peoples.

Key words: Indigenous peoples, land rights, natural resources development

1. Introduction
In 1984, a significant amendment 1 was made in the Constitution of the United Republic of
Tanzania2 to introduce, for the first time, the Bill of Rights. The Bill of Rights led into
recognition, promotion and protection of basic human rights, including the right to life 3, the right
of a person to own property, the right to the protection of someones property and the right to
access the court whenever any of the basic rights has been or is likely to be violated4. The
amended Constitution also prohibits the government from depriving any persons property for

LL.B (Hons), LL.M University of Dar es Salaam. Assistant lecturer in law at the University of Dodoma,
Department of Law. The author is also a Ph.D Candidate at the University of Dar es Salaam. Email:
mwanga23@gmail.com. The author would like to thank Dr. Chacha Bhoke Murungu and Dr. Evaristo Longopa for
insightful comments they made to the draft of this work.
1
The 5th amendment to the Constitution of the United Republic of 1977.
2
Cap. 2 of Laws of Tanzania, R.E. 2002.
3
See Article 14, Ibid. The right to life has been interpreted by the court to include the right to a clean and safe
environment. See the case of Festo Balegele & 749 Others v Dar es Salaam City Council, Civ Appeal No. 90 of
1991 (unreported).
4
See Article 30(3), Ibid.

1
any reason without complying with the provision of the law and without making compensation5.
For the purpose of land, the Land Acquisition Act 6 prohibits the government form acquiring land
occupied by any person except for public purposes and after making prompt and adequate
compensation7. Tanzania is also a party and has ratified several international and regional
contentions that recognise and protect land rights of the indigenous peoples. Examples of these
conventions include the African Charter on Human and Peoples Rights8, the International
Covenant on Civil and Political Rights9 (ICCPR), and the International Covenant on Economic,
Social and Cultural Rights10 (ICESCR). Contrary to what might be expected, the indigenous
communities of Tanzania have continued to suffer land and natural resources dispossession. This
article delves deeply into land rights of the indigenous communities of Tanzania by examining
the legal framework for land for the indigenous peoples and the effects of natural resources
development into their land and resources rights.

2. Indigenous Peoples of Tanzania

There has been conflicting ideas on the use of the term indigenous in the African context. While
some people argue that the term indigenous is not relevant in African context since all Africans
are indigenous and that they were in Africa before the coming of the European colonialism and
further that were subject to subordination during that period11, still others agree that the term may
be used correctly by the marginalised groups in Africa to address a particular form of inequality
which they are suffering from12. The latter argument is perhaps more convincing and it is
supported by the African Commission on Human and Peoples Rights (ACHPRs) 13. The Report
of the African Commissions Working Group of Experts on Indigenous

5
See Article 24, Ibid.
6
Cap. 118 R.E. 2002
7
See section3 and 11.
8
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force on 21 October 1986. Tanzania ratified the Charter
on 18 February 1984.
9
G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3,entered
into force Jan. 3, 1976. Tanzania ratified the instrument on 11 Jun 1976.
10
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force Mar. 23, 1976. Tanzania ratified the instrument on 11 Jun 1976.
11
ACHPR & IWGIA, 2005, Report of the African Commissions Working Group of Experts on Indigenous
Populations/Communities, Banjul & Copenhagen, at p.60.
12
Ibid.
13
See the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of
Endorois Welfare Council v Kenya 276/2003 (Endorois Case).

2
Populations/Communities14 provides that the African peoples who are using the term indigenous
include mainly hunter-gatherers, pastoralists as well as some small-scale farmers15. The report
does not adopt a common definition of the term indigenous peoples but provides the general
characteristics of groups identifying themselves as Indigenous Peoples in Africa16. The report
provides that the indigenous peoples cultures and ways of life differ considerably from the
dominant society and are under threat of extinction; their survival depends on access and rights
to their lands and the natural resources thereon; they live in inaccessible and geographically
isolated regions; and they suffer from discrimination and various forms of marginalization, both
politically and socially17.

Like many other African countries, Tanzania does not have any legal document that identifies
and recognises indigenous peoples in Tanzania. In 2011, the Tanzania Social Action Fund
(TASAF) issued the Draft TASAF III Indigenous Peoples Policy Framework. The Policy
provides that, although the determination of indigenous groups in Tanzania is yet to be
completed, the country recognises the ACHPRs report on human and peoples rights which lists
Hadza, Barbaig and Maasai to be Indigenous peoples living in Tanzania18. Article 56 of the
Proposed Constitution of the United Republic of Tanzania 19 provides for rights of the minority
groups. The definition of the minority groups under this Article embraces the features of
indigenous peoples of Africa as provided in the ACHRs report. The Proposed Constitution
requires land used by the minority groups for their livelihood to be secured. Maina C.P argues

14
The report was adopted by the African Commission on Human and Peoples Rights at its 28th ordinary session
15
ACHPR & IWGIA, 2005 (above) at p.15.
16
Even under the United Nations, to present, an official definition of indigenous peoples has not been adopted. An
attempt to define the term indigenous peoples was made by the United Nations Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities. The Special Rapporteur defined
indigenous peoples in the following words:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and
pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society
and are determined to preserve, develop and transmit to future generations their ancestral territories, and their
ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns,
social institutions and legal systems. Quoted in CM Peter, Human Rights of Indigenous Minorities in Tanzania
and the Courts of Law (2007) 9 http://www.rwi.lu.se/pdf/seminar/peter%20tanzania%202007.pdf. This article is
published in CM Peter, Human Rights of Indigenous Minorities in Tanzania and the Courts of Law (2007) 24/4
International Journal of Group and Minority Rights.
17
Ibid, at p.89.
18
United Republic of Tanzania, (2011), Draft TASAF III Indigenous Peoples Policy Framework, at p.4. see also
ACHPR and IWGIA, (2005), (above), at pp. 15 19.
19
See note 104 (below)

3
that, basing on the identified characteristics of indigenous peoples in Africa by the ACHPRs
report; in Tanzania the indigenous groups include the Hadzabe or Hadza, Ndorobo, Maasai and
Barbaig20.

The Hadza are hunter-gatherers living around Lake Eyas in the northern Tanzania. In spite of the
several attempts which have been made by the government of Tanzania to settle them in
permanent areas and to make them change from their traditional life, the Hadza have constantly
maintained their traditional ways of life and they considerably differ from their neighbours 21.
They live by hunting game, collecting honey, digging tubers and gathering fruits22. The Barbaig
and the Maasai are nomadic pastoralists. Traditionally, the former live on the plains surrounding
Mount Hanang in Hanang District and the latter live in semi arid areas of north Tanzania
particularly in Arusha region23. However due to shortage of land for grazing, the Maasai are
spreading in different regions of Tanzania. Both Barbaig and the Maasai practice transhumance
moving with their herds from place to place depending on the availability of pasture and water24.

3. Rationale behind Indigenous Peoples Right to their Ancestral Land

The debates and discussions on the protection and promotion of the rights of the indigenous
peoples to access their ancestral land and the resources thereon have been facing challenges from
a misconception that this movement amounts to giving special rights to these groups which are
over and above the rights of all other groups within a country25. Some have even gone further by
arguing that this movement, if continue, will lead into tribalism and ethnic conflicts26.
Nevertheless, it is undisputed fact that most of the indigenous peoples of the world are
20
C.M Peter (above), at p.14.
21
Lee R.B & Hitchcock, R.K (2001), African Hunter-Gatherers: Survival, History, and the Politics of Identity
African Study Monographs, Suppl.26, at p. 262. Attempts to settle Hadza stated as far as during colonial period. The
first attempt was by the British colonial period in 1939. In 1964 and 1965 the independence government of Tanzania
unsuccessful tried to settle the Hadza in one place and established social services infrastructures such as school and
dispensary. This attempt was followed by other attempts between 1971 and 1975. Nevertheless, like preceding
attempts the 1971 1975 attempts also failed. See also Marlowe F, (2002), Why the Hadza are Still Hunter-
Gatherers, in Sue Kent (Ed.), Ethnicity, Hunter-Gatherers, and the Other: Association or Assimilation in Africa,
Washington D.C.: Smithsonian Institution Press, at pp 247-275.
22
Marlowe (above), at p.3
23
In Arusha region, the Maasai are mainly found in the areas of Loliondo, Ngorongoro and Monduli.
24
See Lane C.R., (1994), Pastures Lost: alienation of Barbaig land in the Context of land policy and legislation in
Tanzania, Nomadic People, Number 34/35, at p.82.
25
ACHPR and IWGIA, 2006, Indigenous Peoples in Africa: the forgotten peoples?, at p.12, available at
http://www.achpr.org/files/special-mechanisms/indigenous-
populations/achpr_wgip_report_summary_version_eng.pdf, last accessed on 13th March 2015 (12:52 pm)
26
Ibid.

4
vulnerable, marginalised, disadvantaged and excluded groups27. Further the ways of life of the
indigenous communities are considerably different from that of the dominant groups. It is upon
this basis that the protection and promotion of their rights in the World and in Tanzania
particularly become of a great concern. Their nature and condition of life warrants a special
treatment or favour over other members of the society28.

The indigenous peoples ways of life have close ties with the land and the resources they posses.
Their right to land is both a material and spiritual element. It is a right which they must enjoy for
the purposes of preserving their cultural life and transmitting the same to the future
generations29. Thus refusing the indigenous peoples rights over their land is equally to violating
their right to life and the right to self determination. Recognising the importance of indigenous
peoples land and the resources found therein, the United Nations Declaration on the Rights of
the Indigenous Peoples30 emphasises that the indigenous peoples have the right to the natural
resources which they have traditionally owned or occupied which include the right to own, use,
develop and control their natural resources 31. The Declaration further requires States to grant
legal recognition and protection to the land and natural resources traditionally owned or occupied
by the indigenous peoples32.

The access and use of land and the resources found therein by the indigenous peoples is an
essential prerequisite not only for their cultural but also economic survival33. Their traditional
land and resources are communal property and form their means of subsistence; they are a factor
for their cultural identity and a fundamental basis for their spiritual life and integrity34.

27
In the Endorois case (above) the African Commission on Human Rights noted that the special measures by States
towards the rights of the indigenous peoples are intended to address historical and current injustices and inequalities
the indigenous peoples are facing.
28
See the Saramaka People v Suriname, IACHR Series C no 172, IHRL 3046 (IACHR 2007), 28th November 2007,
Inter-American Court of Human Rights [IACtHR]. The Inter American Court of Human Rights provided that there
are circumstances where the international law principles permit unequal treatment towards persons in unequal
situations.
29
Ibid.
30
Adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at:
http://www.refworld.org/docid/471355a82.html [accessed 5 August 2015]
31
See Article 26
32
Ibid. See also Articles 14 and 15 of the Indigenous and Tribal Peoples Convention, 1989 (ILO Convention 169);
27 June 1989, available at: http://www.refworld.org/docid/3ddb6d514.html [accessed 5 August 2015]
33
Ibid.
34
See the cases of the Saramaka Case (above) and Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACHR
Series C No 79, [2001] IACHR 9, IHRL 1462 (IACHR 2001), 31st August 2001, Inter-American Court of Human
Rights [IACtHR].

5
International law requires States to put in place special measures, both legal and administrative
measures, aiming at recognising, respecting, protecting and guaranteeing indigenous peoples
rights to their traditional land and natural resources35. The purposes of these special measures are
to ensure that the indigenous communities continue run their traditional life and further that their
distinct cultural identity, social structure and economic system are guaranteed and protected by
the States36.

4. Legal framework for Land Occupation for Indigenous Communities in Tanzania

Neither the Constitution of the United Republic nor land legislation has special provisions for
indigenous communities. Despite the recent reforms in land laws37, the indigenous peoples
rights to their traditional land are not fully accommodated in the laws of Tanzania. To give a
general picture of land regime in Tanzania, three periods of land regimes are discussed. These
are the period before colonialism, colonialism and the period after colonialism.

4.1 Pre-Colonial Era

During pre-colonial period, land was the major means of production. The communities depended
on their land and the natural resources found therein. Further, communities had their own system
of rules in the form of customs and traditions which regulated the use and sustainable
management of land and other natural resources found in their territory38. These rules are
generally referred as customary law. Each tribe had its own customary law on land; however
most of the African natives rules on land had similarities. Land was managed as a common
property owned by a family, clan or tribe. Access to land was governed by chiefs, headmen and
elders in the community according to their customs. One of the main features of pre-colonial
society was that each member of the society was assured land for his own use and the use of the
family39.

4.2 Colonial Period

35
See Saramakas Case, Ibid.
36
Ibid.
37
In 199 new land laws (the Land Act and the Village Land Act) were enacted to repeal and replace the British
colonial ordinance; the Land Ordinance of 1923.
38
ACHPR & IWGIA, (above), at p.21
39
For the societies which were in feudal mode of production, land was owned by few members of the society, the
feudal lords and other members of the society were tenants.

6
Tanzania Mainland was firstly colonised by Germany and after the First World War it was
placed under the British colonial regime, as a mandated territory, following the Versailles Peace
Treaty of 191940. The Germany colonial government through the Imperial Decree of 1895,
declared all land in Deustch Ost Afrika (Tanganyika), whether occupied or not, to be Crown
land. The Decree also introduced the concept of ownership of land and occupation of land.
While ownership could be evidenced by a document of title, occupation could be proved by
cultivation of piece of land or erection of building41. The white settlers and immigrants, who in
fact, were the only who could prove ownership of land, were granted with right of occupancy
and their security of tenure were guaranteed by the colonial state. The natives were only allowed
to use the Crown land under permissive rights of land. Generally under the Germany colonial
regime, the natives were dispossessed their land in favour of settlers and creations of protected
areas. The establishment of plantations and reserves42 pushed the natives from their fertile lands
into other areas of the country.

The British Colonial regime in Tanganyika started in 1919. The British colonial government
enacted its first Land Ordinance in 1923. The Ordinance declared all land in the Tanganyika
territory, whether or occupied or unoccupied, to be public land save for the land which was
lawfully acquired before the Ordinance came in to force43. Public land was put under the control
of the Governor and any occupation or use of the land should obtain the consent of the
Governor44. Through the amendments made in 1928, the Land Ordinance recognised customary
right of occupancy. Like German Colonial regime, the British colonial government continued to

40
Under Article 119 of the Peace Treaty of Versailles, Germany renounced in favour of the Principal Allied and
Associated Powers all her rights and titles over her overseas possessions.
41
See the case of Mtoro Bin Mwamba v The Attorney General, EACA, Civil Appeal No. 29 of 1952. In this case the
East African Court of Appeal provided that the natives of Tanganyika, like other natives of Africa do not know
anything about individual right ownership over land which is equivalent to freehold tenure as known to English law.
The court further provided that the usual form of native title is that of a usufructuary title, which is a mere right to
use land; and may also be termed as occupational or agricultural right.
42
Before the First World War, there were 15 reserves in Tanganyika. The first reserve was established in 1896. See
Baldus R. D., et al (2001), Experiences With Community Based Wildlife Conservation In Tanzania, in Rolf D.
Baldus and Ludwig Siege (Eds.), Tanzania Wildlife Discussion Paper No. 29, at p.1, available at
http://www.wildlife-baldus.com/download/nr_29_1.pdf (accessed on 5 August 2015)
43
See section 2 of the Land Ordinance, 1923.
44
See section 3, Ibid.

7
alienate native land for plantations owned by the white settlers and creations of game reserves
and other protected areas45.

4.3 Post Colonial

After independency a number of colonial government enactments on land and natural resources
continued to apply46. From 1960s following the 1967 Arusha Declaration, Tanzania adopted its
own Socialism; Socialism and Self Reliance (Ujamaa na Kujitegemea). Under this ideology,
Ujamaa villages were established in rural areas with communal ownership of land and other
basic goods. Rural inhabitants were required to settle in these villages. The restructuring of
villages into Ujamaa villages ignored the existing customary rights to land 47. As a result some
people including the indigenous peoples were evicted from their ancestral lands. Although
private ownership was highly discouraged during socialism, there were few circumstances where
the State allocated land to some private investors. A good example is the instance in 1970, when
the government allocated 379,000 acres of land in Monduli district to an individual investor. This
land included a traditional land used for grazing by the indigenous Maasai48. The establishment
of different parastatal organs that were allocated with large areas of land for different crop
production also contributed to alienation of the indigenous peoples land. For examples, the
National Agricultural and Food Corporations (NAFCO) established in196949 was allocated with
large area of land in Hanang District for wheat production50. The land encompassed land
traditionally occupied by the indigenous Barbaig Community. The establishments of national

45
See Homewood, K., et al (2009), Changing Land Use, Livelihoods and Wildlife Conservation in Maasailand, in
Homewood K., et (Editors), Staying Maasai?: Livelihoods, Conservation and Development In East African
Rangeland, Springer Science + Business Media LLC, New York, at p.6. see also Ndagala, D.K., (1990),
Pastoralists and the State in Tanzania, Nomadic Peoples, Number 25 27, at p.53.
46
Examples of Colonial enactments on natural resources which were inherited by the independence government are
the Land Ordinance, Cap 113; The Land (Law of Property and Conveyancing) Ordinance, Cp 114 and the Forest
Ordinance, Cap 389 to mention but a few.
47
See Rebecka Isaksson and Ida Sigte, Allocation of Tanzanian Village Land to Foreign Investors Conformity to
Tanzanias Constitution and the African Charter on Human and Peoples Rights, at p.18, available at
http://www.jus.umu.se/digitalAssets/52/52924_ida-sigte-rebecka-isaksson-ht09.pdf (accessed on 5 August 2015)
48
Fred Nelson, et al, Land Grabbing and Political Transformation in Tanzania, Paper presented at the International
Conference on Global Land Grabbing II October 1719, 2012, at p.4.
49
See HAKIARDHI, (2009) The State of the then NAFCO, NARCO and Absentee Landlords Farms/Ranches in
Tanzania, at p.1.
50
Ibid., at p.3

8
parks and game reserves further intensified the alienation of the indigenous communities
ancestral land51.

In 1984, the Constitution of the United Republic was amended to introduce, for the first time, the
Bill of Rights52. Under the amended constitution the right to property is recognised among
others53. Customary right of occupancy, including a deemed right of occupancy is also
recognised as property protected under the Constitution and which cannot be deprived by the
State without fair compensation54. In 1995, following the report of the Presidential Commission
of Enquiry on Land Matters55 (Shivji Commission), a new Land Policy was promulgated. The
Policy proposed several reforms in the land sector. To put the Policy into force in 1999, the new
land laws (the Land Act56 which regulate land in urban areas and the Village land Act 57 which
applies in rural areas) were enacted. The new land laws incorporated some of the
recommendations which were proposed by the Shivji Commission.

4.4 General Overview of the Current Land Regime for the Indigenous Peoples

All land in Tanzania is a public property and is vested to the president who holds it as a trustee
for the public58. The control and the powers to manage land are vested to the government. An
individual person has the right to use land and other resources subject to the conditions imposed
by the relevant laws. Land laws recognise individual occupation of land under granted right of
occupancy59 or customary right of occupancy60 as well as collective occupation of land61. Village
land is managed by the Village Council which is vested with powers, with the approval of the
village assembly, to allocate village land62. The provisions of the land laws that recognise
customary right of occupancy, which includes deemed right of occupancy; and communal
occupation of land have the potential of improving the status of the indigenous peoples rights to

51
See ACHPR & IWGIA, (above), at pp.24 25.
52
See Article 24 of the Constitution of the United Republic of Tanzania, 1977 (as amended from time to time)
53
See Article 24, Ibid.
54
See the case of Attorney General v Lohay Akonaay and Joseph Lohay 1995 TLR 80 (CA), at p.79.
55
1991 - 1992
56
Cap. 113 R.E. 2002
57
Cap. 114 R.E. 20021
58
See section 4(1) of the Land Act, Cap 113, and section 4(1) of the Wildlife Conservation Act, No. 5 of 2009.
59
See section 19(1) of the Land Act, Ibid.
60
See section 22 of the Village Land Act, Cap 114. The Act regulates land in rural areas where customary right of
occupancy applies.
61
See section 13 Ibid.
62
See Section 8 Ibid.

9
land63. Nevertheless the contradiction which exists between the Land Act and the Village Land
Act over general land makes indigenous communities land vulnerable to alienation for other
investments64. Under the Land Act, indigenous peoples land in villages which are not
demarcated and registered as required under the law is considered as unoccupied land open to
relocation by the government 65.

The President is vested with powers to revoke any rights over land if it is for the public
purposes66. The law defines public purposes to include where the land is required for exclusive
government use; general public use; government schemes; development of agricultural land or
for the provision of sites for industrial or commercial development; and social services or
housing. The land is also required for public purposes if it is required for sanitary improvement;
laying out of or improvement of any new city, municipality, township or minor settlement;
development of airfield, port or harbour; and mining for minerals or oil. The law also allows the
President to revoke rights over land held by any person for public purposes if the land is required
for use by the community or a corporation within the community; or by any person or group of
persons who, in the opinion of the President, should be granted such land for agricultural
development67. The revocation of rights over land by the President for public purposes involves
paying of compensation to the holders of the revoked rights. The law requires compensation to
be adequate and prompt68. However experience shows that compensation has not only been
inadequate but even some of the holders of rights over land, particularly those holding land under
customary right, have been denied compensation69.

63
See Homewood, K., et al (above), at p.7.
64
Ibid.
65
See section 2 of the Land Act and Section 2 of the Village Land Act.
66
See section 3 of the Land Acquisition Act, 1967. The term land is defined under the law to include the surface of
the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or
below the surface, things naturally growing on the land, buildings and other structures permanently affixed to land.
See section 3 of the Land Act, 1999. Thus under the law some natural resources such as forests are also considered
as part of land.
67
See section 4(1) Ibid.
68
See rules 3 and 4 of the Land (Assessment of the Value of Land for Compensation) Regulations, 2001.
69
Elia Mwanga (2014) Legal Implications of Land and Forest tenure in Implementing REDD+: a review of
ongoing REDD+ pilot projects in Tanzania 4 Environmental Liability Law, Policy And Practice at p.159. In the
Case of Lekengere Faru Parutu Kamunyu and 52 Others v Minister for Tourism, Natural Resources and
Environment and 3 Others (CA) Civil Appeal No 53 of 1998 (unreported), the indigenous Maasai who occupied
land for more than 50 years were refused right over the disputed land on the ground that they failed to show that
they were occupying such land in accordance with the law. The Maasai wanted to establish that they have been
occupying that land under customary right of occupancy particularly deemed right of occupancy. However the court
decided that the Maasai were not the first ethnic group to arrive on the disputed land. They were thus evicted from

10
 5. Natural Resources Development and the Indigenous Peoples Rights Over Land

As stated earlier in the preceding sections, the indigenous people traditional land is a communal
property; owned collectively by all members of the community and used by the whole
community at large. Under the African Charter on Human and Peoples Rights, like other private
properties, the indigenous peoples communal property qualifies legal protection. The African
Commission have emphasised that, under Article 14 of the African Charter, for the purpose of
indigenous peoples, the right to property covers the rights of indigenous communities to enjoy
undisturbed possession, use and control of their ancestral land 70. Therefore, it goes without
saying that the indigenous peoples rights over land can only be encroached by the State if it is for
the interest of the public and it has been done according to the established law. Further the
encroachment should be proportional and should aim at achieving a legitimate goal71.

Natural resource development may result into various negative effects to the natural
environment. Sometimes sacred places for the indigenous peoples are desecrated, pristine forests
are damaged, fertile lands are destroyed, and even entire villages or towns are displaced to the
extent that indigenous peoples are no longer able to maintain their traditional ways of life72. In
most cases, the indigenous peoples of Tanzania are the main victims of natural resources
development activities. Absence of legal framework in Tanzania which effectively secures the
rights of the indigenous peoples to access and use their traditional land has invariably subjected
these peoples into involuntary immigration and forceful evictions to give room to other land uses
such as large scale crop cultivation; creation of Wildlife Protected Areas including Game
Reserves and expansion of National Parks; mining; and a wide range of other Foreign Direct
Investments (FDIs), which are considered by the government to be more economically viable 73.

their ancestral land without being compensated. See also Kituo cha Sheria na Haki za Binadamu and Kituo cha
Huduma za Sheria Zanzibar (2012), Taarifa ya Haki za Binadamu Tanzania ya Mwaka 2011, at p.155.
70
See Endorois Case (above). In this Case the African Commission stated clearly that right to property also covers
the rights over the communal land of the indigenous communities.
71
Ibid.
72
C Lennox, Natural resource development and the rights of minorities and indigenous peoples at p.15, available at
http://www.minorityrights.org/download.php?id=1114.
73
See C. Mungongo and D. Mwamfupe (2003), Poverty and Changing Livelihoods of Migrant Maasai
Pastoralists in Morogoro and Kilosa Districts Tanzania, Research Report No. 03.5, Mkuki na Nyota Publishers Ltd,
at p.5. Most of the Maasai today have shifted into other parts of Tanzania such as Morogoro and Kilosa districts
Tanzania due to encroachment of their land by the government. C Mungongo and D Mwamfupe note that
alienation of Maasai land for agricultural activities and other natural resource development activities are the major
factors for the Migration of Maasai from their ancestral areas.

11
The problem of dispossession of indigenous peoples land in Tanzania is exacerbated by the
system of occupying land in rural areas. Customary right of occupancy which applies in rural
areas is defined as a right of occupancy created by means of issuing a certificate of customary
right of occupancy and includes a deemed right of occupancy. Deemed right of occupancy refers
to the title of a Tanzanian citizen or community of Tanzanian citizens of African descent using or
occupying land under and in accordance with the customary law. 74 Unlike the first category of
customary right of occupancy which is created through issuance of certificate, deemed right of
occupancy is created through long term usage of land. Indigenous communities derive their
rights to land under customary right of occupancy, particularly deemed right of occupancy. Due
to low status equated to this right of occupancy by the government officials, the indigenous
peoples have been refused their right to land whenever natural resource development activity is
to take place on their territories75. Further, most of the indigenous villages are not demarcated
and thus their land is considered terra nullius76which is open to relocation77.

Generally the Tanzanian indigenous peoples land tenure system is faced by a number of
challenges. These include lack of formal title to their traditional land and lack of a legal system
which recognises their land as a communal property. All these make it simple for the government
to disregard the indigenous peoples rights over their ancestral land. The African Commission on
Human Rights have maintained that the indigenous peoples traditional possession of their
ancestral land has equivalent effect to the right granted by the state and full property title 78. It
follows therefore that where the right of the indigenous peoples over their traditional land is to be
restricted, the state must show the relevant public interest involved and must comply with the
requirements of consultation; adequate and prompt compensation; and where necessary sharing
of the profits of the investment79. Consultation is aimed at ensuring that the indigenous peoples
are involved effectively in the decision affecting their rights. However to achieve effective

74
E Mwanga(above), at p.158
75
Nevertheless, it should be noted that refusing the indigenous community their right to land on the ground that they
cannot prove their possession through document of title is contrary to international law which recognises traditional
possession of land by indigenous peoples to have equivalent effect as title granted by the State. See the Endorois
case (above) and the Saramaka Case (above).
76
ACHPR & IWGIA, (above), at p.21
77
For a village to be registered in Tanzania, it must be demarcated. The land in unregistered villages is not
considered as a village land but a general land. Under the Land Act, this land is considered as unused land open to
relocation by the government.
78
See the Case of Endorois (above)
79
Ibid. See also the Mayagna Case (ab0ove) nd Saramaka People Case (above)

12
participation, the indigenous peoples should be consulted with accordance to their customs and
traditions. Further the consultation must be conducted in good faith, aiming at achieving a
mutual agreement. Where the development projects would lead into evictions of the indigenous
communities the State should endeavour to achieve free, prior and informed consent80.

The right to free, prior and informed consent is an important safeguard against violations of the
indigenous peoples rights to land and natural resources81. The right is recognised in various
international and national laws82 as well as decisions of regional bodies83 and it entails four
important concepts84. First the consent must be given without coercion or intimidation; second
the consent must be given fully prior to the commencement of any activity affecting the
indigenous peoples or their land, territories or resources; third the affected indigenous peoples
must be given full disclosure of the activity and its potential impact; and lastly the collective
right of the indigenous peoples to give or to withhold consent to proposed activities.
Consultation is not only beneficial to the indigenous peoples, but the government too. Where
consultation is effective and complies with all the requirements as set under international laws;
that is consultation done in good faith basing on free, prior and informed consent, it may result
into adoption of best methods of implementing development projects which may also reduce
negative impacts to the indigenous peoples. It also helps to achieve smooth implementation of
projects and instils confidence to the government that the projects have been accepted by the
indigenous peoples. The opposite of it will result into constant resistance from the indigenous
peoples against development projects and forcible evictions of the indigenous peoples from their
ancestral lands85 which ultimately results into violations of the indigenous peoples rights over
their traditional land and resources therein. For example, in 2013 when the government of
Tanzania announced its decision to produce and transport natural gas from Mtwara to Dar es
Salaam, the people of Mtwara reacted negatively. The Prime Minister admittedly stated that the

80
See the Saramaka Case (above)
81
See the Endorois Case (above).
82
See Article 2(3) of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, G.A Res. 47/135 of 1992. In Tanzania section 75 of the Environmental
Management Act, 2004 recognizes the right of the public to participate in environmental decision making.
83
See Ogoni Case (above) and Endorois Case (above)
84
C Lennox, (above) at p.17
85
Eviction of indigenous peoples to give way to various projects is a common phenomenon in Tanzania. The fact
that these people occupy areas targeted by the government and the investors make them vulnerable and main victims
of land dispossession.

13
government of Tanzania was to be blamed for the demonstrations against the construction of
pipeline to transport natural gas by failing to involve and educate the people of Mtwara on the
benefits which will be obtained from the gas sector in improving their economy and other
surrounding areas where the natural gas has been discovered 86. Equally, the indigenous
communities too need to be educated on any intended project to be implemented on their land
before they can be invited to give their comments.

The ILO Convention No. 169 calls for safeguards of the rights of the indigenous peoples
concerned to their ancestral land and their resources pertaining to their lands. The Convention
calls for the participation of the indigenous peoples in the use, management and conservation of
resources found on their land. The Convention further requires that wherever possible,
indigenous peoples must participate in the benefits of natural resource development activities,
and must receive fair compensation for any damages which they may sustain as a result of such
activities87. The Wildlife Conservation Act and the Forests Act give opportunity for indigenous
communities and other societies living near forests and national parks to engage in conservation
and management of forests and wildlife through Community Based Organisations (CBOs). The
former Act allows the establishment of Wildlife Management Areas (WMAs) for the purposes of
effecting community based wildlife conservation in the village land and in areas which are
outside core protected areas and used by members of the local community 88. Various activities
may be carried in WMAs; however these activities must be in conformity with the Forest Act,
Bee Keeping Act, Environmental Management Act and other relevant laws. The Wildlife
Conservation Act also allows associations authorised to manage WMAs to negotiate and sign
agreements with potential investors89. On the other hand the Forest Act introduces what is
referred as Participatory Forest Management (PFM); a community-based approach to securing
and managing forests, with the objectives of controlling deforestation, promoting forest
conservation and regenerating forest resources; promoting good governance and improving rural
livelihoods90. The Act recognises two types of PFM: Community-Based Forest Management

86
Lusekelo Philemoni, PM allays fears on gas, available at http://www.ippmedia.com/frontend/?l=50663, last
retrieved on 11th March, 2015.
87
Article 15 ILO C.169 of 1989 (above). See also the Endorois Case (above).
88
See section 31 of the Wildlife Conservation Act, No 5 of 2009.
89
Ibid.
90
Elia Mwanga, 2013, (above), at p.50.

14
 91
(CBFM) and Joint Forest Management (JFM) 92. JFM which takes place on reserved forests
requires the villages to enter into agreements to share management responsibilities with the local
government or central government as the case may93. Both WMAs and JFM provide for sharing
of costs and benefits from management and conservation of the relevant resources. PFM was
established earlier than WMAs. Despite of the truth that PFM have proved positively in attaining
the intended objectives, the unwillingness of the government to share benefits and/or unfair
distribution of such benefits threatens its existence94. On the other hand, with regard to WMAs,
the government controls all licences for hunting and game viewing in WMAs 95. Thus even where
the indigenous communities participate in PFM or WMAs, there is no guarantee that they will
receive equitable share of the benefits accrued form these activities.

6. Cases of Involuntary Evictions of the Indigenous Peoples

Despite the fact that International law prohibits states from resorting to forcible evictions of
indigenous peoples, the indigenous communities of Tanzania have continued to suffer from the
effects caused by forcible eviction. For example, in 1992, the Government of Tanzania granted a
commercial hunting licence on a land belonging to eight registered villages that are
predominantly inhabited by Maasai pastoralists, to Ottelo Bussiness Cooperation (OBC) - a
United Arabs Emirates company. 96 These villages are located within the boundaries of the
Loliondo Game Controlled Area where human settlements are permitted. As a result of the
hunting licence, the Maasai pastoralists lost control over important parts of their village lands
which are fundamental for their livelihoods. These areas contain key natural resources such as
salt lick and water and they provide pasture in times of severe drought.97 To end resistances from
the indigenous Maasai, in July 2009 the government leadership of the Ngorongoro District, in
collaboration with the OBC security guards, forcefully evicted Maasai pastoralists by burning

91
See section 42 of the Act.
92
See section 16.
93
Reserved forests are divided into national forest reserve; which are owned by the central government and local
authority forest reserved owned by the local government. (See section 4 of the Forest Act)
94
Elia Mwanga, (above) at p.52.
95
Homewood, K., et al (above), at p.7.
96
Fred Nelson, et al, (ibid), at p.13
97
Coalition of Indigenous Pastoralist and Hunter Gatherer Organizations Shadow Report Concerning the Situation
of Economic Social and Cultural Rights of Indigenous Pastoralists and Hunter Gatherers of the United Republic of
Tanzania, available at
http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/TZA/INT_CESCR_NGO_TZA_14000_E.doc.,
last accessed on July 17, 2015 (4:22 pm)

15
more than 200 residential houses. 98 Another case of forceful evictions is the November 2008
Kilosa eviction. On the 19 November 2008, the District Executive Director of Kilosa District,
Morogoro Region through a letter addressed to Ward, Village and executive officers denounced
the existence of Ngaiti Sub Village and its inhabitants and required them to vacate so as to allow
the implementation of large scale commercial wheat cultivation. 99 The village, which has around
20,000 inhabitants, has been occupied by indigenous Maasai pastoralists since 1951.100 In all
these cases, the government did neither compensate nor grant the affected indigenous
communities with alternative areas where they can run their lives.

Involuntary resettlement or forcible evictions causes serious violations of basic civil, social,
political and cultural rights. To the indigenous peoples, forcible evictions sever their
relationships with their traditional land 101. Forcible eviction may further put into an end their
traditional way of life and may even put to an end the very existence of the indigenous people 102.
Spiritual lives and traditional practices of medicine, food preparation and other ways of life tied
to their ancestral land can easily be destroyed by forcible eviction 103. Involuntary settlement may
also stir conflicts between different ethnic groups. As a result of forcible evictions, the Maasai
indigenous community are spreading in different regions of Tanzania in search of pasture and
water for their herds. This has led into constant conflicts between indigenous pastoral societies
and farmers. It can be observed that conflicts over resource use in Tanzania, particularly land
and water between sedentary agriculturists and indigenous nomadic pastoralists have been on the
increase from time to time. In some areas these conflicts are so serious to an extent of claiming
lives of the people104. Mvomero and kilosa districts in Morogoro region and Kiteto district in
Manyara region are but a few examples of areas where land conflicts have resulted into killings
of people and destruction of properties.

98
Ibid.
99
Brief Report on the Eviction of Pastoralists from Kilosa District, Feb 2009, by PINGOs Forum.
100
Under the law the Maasai had customary right of occupancy resulting from long possession of the land.
101
See the Case of the Moiwana Community v. Suriname, Series C No. 124, Inter-American Court of Human Rights
(IACrtHR), 15 June 2005, available at: http://www.refworld.org/docid/4721bb292.html [accessed 15 July 2015]
102
ACHPR & IWGIA, (above), at p.15
103
See C Lennox, (above), at p. 14. In Tanzania the Maasai serves as a good example. Traditionally the Maasai are
pastoral societies. Continuous evictions of the Maasai from their ancestral land, which in turn has led into shortage
of land for grazing their animals, have resulted into constant migrations of the Maasai to urban areas. Some are also
engaging in other economic activities, such as cultivation and most of the youths (Morani) are employed as
watchmen in urban areas. See C Mungongo and D Mwamfupe (above) at p.5.
104
In December 2000 31 people were killed in Ludewa village of Kilosa district following outbreak of conflict
between agriculturalists and pastoralists. See C Mungongo and D Mwamfupe (above) at p.32.

16
 7. Indigenous Land Rights under the Proposed Constitution

The Proposed Constitution of the United Republic of Tanzania 105 does not mention the term
indigenous peoples or indigenous communities. However Article 56 of the Proposed Constitution
is relevant for the indigenous peoples. The Article provides for the rights of the minority groups
in the society. It defines minority group to mean a category of people whose livelihoods depend
on natural vegetation and the environment around them for food, shelter and other necessities of
life. Nevertheless no any category of people is mentioned in the Proposed Constitution as a
minority group. The Proposed Constitution requires the government through its relevant
authorities to enact a law which will allow the minority groups, among others, to be allocated
with the land which they traditionally depend on to run their lives. It also requires the
government to take deliberate measures to sustain economic activities of the minority groups and
to provide them with social services such as housing, water, education and health
infrastructures106. Therefore, although the Proposed Constitution does not define the term
indigenous peoples or provide for the criteria for identifying the indigenous peoples, it impliedly
accepts the criteria set by the African Commissions Working Group of Experts on Indigenous
Populations/Communities in Africa107. The Proposed Constitution, impliedly, admits that the
survival of the indigenous peoples depend on the right to access their traditional land. It also
admits that the indigenous peoples are marginalised group of the community; they suffer from
lack of good social services; and that they suffer discrimination within the national political
structure108.

105
The proposed constitution was adopted by the Constituent Assembly on October 2014. However, controversy
exists as to the validity of the proposed constitution. During its discussion in the Constitutional Assembly key
recommendations made by the Constitutional Review Commission (CRC) chaired by Judge Warioba, including the
proposal of having three governments: Union government and States government, were disregarded. Members of the
three leading opposition parties in Tanzania; Chama Cha Demokrasia Na Maendeleo (CHADEMA), Civic United
Front (CUF), and the National Convention for Construction and Reform (NCCR), who were supporting the CRCs
proposal joined with a fraction of delegates from civil society to form the Coalition of Defenders of the Peoples
Constitution, (Umoja wa Katiba ya Wananchi (UKAWA)). To press their agenda, UKAWA members refused to
attend the Constitutional Assemby until this controversy is resolved. Members of the ruling party, Chama Cha
Mapinduzi (CCM) continue with the Constitutional Assembly and adopted the proposed constitution which will be
adopted by the citizens through a referendum. It is even argued by the UKAWA members that the ruling party used
its dominance to bribe members of the Constituent Assembly to vote for the Proposed Constitution.
106
Article 56(2) of the Proposed Constitution.
107
See ACHPR & IWGIA (above), at p.80.
108
See Article 56(1) & (2) of the Proposed Constitution (above).

17
The rate of dispossession of the indigenous communities ancestral land in Tanzania is extremely
high. In fact, the indigenous communities of Tanzania are facing severe shortage of land. As a
result of forceful eviction, many members of the indigenous communities of Tanzania are
scattered in various areas of Tanzania. It is even sad to note that some of the indigenous peoples
traditional areas that were acquired compulsorily by the government, today remain unused as the
projects for which they were acquired have failed109. This calls for deliberate measures by the
government to make restitution of some indigenous communities ancestral lands that were
previously acquired. It is equally important that the indigenous communities/the minority groups
are formally identified in the laws of Tanzania. This will enable these groups to claim for the
rights granted to them by the Constitution and other laws of the land.

8. Conclusion

It is very true that all African natives are indigenous to Africa. Nevertheless, most of the African
communities have abandoned their traditional life and have embraced the western life style,
civilised life. Only some few African communities have continued to maintain their traditional
ways of life, which were practiced even before the coming of colonialism. To the rest of the
African societies, these few communities are considered as backward and primitive. More over
these societies are marginalised and in such are characterised by poor social services;
dispossession of their ancestral land and natural reassures; and different forms of discrimination.
It is this line which differentiates the indigenous African communities from the majority or
dominant Africans.

Indigenous communities of Tanzania, like other indigenous communities of Africa, run difficult
life due to different reasons. The laws in Tanzania recognise neither the indigenous people nor
their special rights to their ancestral land. Instead of assisting them to exercise their traditional
life as required by the international law, the government of Tanzania strive to force them to
change from their traditional life and adopt what is termed as a civilised life. Their system of
owning land and other natural resources has made it simple for dispossession of their traditional
land by the government for other investments. This is, in fact, contrary to the international law to
which Tanzania is a part. It is high time that the indigenous communities of Tanzania should be

109
Example, the land belonged to indigenous Barbaig which was granted to NAFCO for wheat production in
Hanang and Simaniro Districts.

18
recognised and their rights be defined clearly under the Constitution of the United Republic.
Instead of being involuntarily evicted from their traditional land, the government should adopt
special measures to ensure that their rights to their ancestral land are constitutionally recognised,
protected, promoted and granted.

19
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