i
VALUERS REGISTRATION BOARD
COMPULSORY LAND ACQUISITION BY LOCAL GOVERNMENT
AUTHORITIES IN TANZANIA: POLICY AND PRACTICE
By
Charles Kitalya
REG#. VRB/CAND/042/2021
A Thesis Submitted in Partial Fulfillment of the Requirements for Full
Professional Registration with Valuers Registration Board.
November, 2021
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CERTIFICATION
The undersigned certify that they have read and hereby recommend for examination a
thesis titled “Compulsory Land Acquisition by Local Government Authorities in
Tanzania: Policy and Practice” in fulfillment of the requirements for registration
with Valuers Registration Board.
__________________________________
Prof. Joseph L. Kironde
(Supervisor)
Date ____________________________
ii
DECLARATION
AND
COPYRIGHT
I, Charles Kitalya, hereby declare that this thesis is my own original work and that it
has not been presented and will not be presented to any other Institution for a similar
requirement or any other award. The Thesis is Submitted in Fulfilment of the
Requirements for Professional Registration of Valuers by the Valuers Registration
Board; November, 2021.
Signature…
©
This Thesis is copyright material protected under the Berne Convention, the
Copyright Act of 1999 and other international and national enactments, in that behalf
on intellectual property. It may not be reproduced by any means, in full or in part,
except for short extracts in fair dealing; for research or private study, critical scholarly
review or discourse with an acknowledgement, without the written permission of the
Registrar, on behalf of both the author and Valuers Registration Board.
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ABSTRACT
This study examines the scope and extent of which policies and statutes available are
applied before, during and after a particular piece of land is acquired by local
government authorities for public purpose in Tanzania. The focus is on the actual
acquisition process adopted by the Kahama Municipal Council as a Planning
Authority in its own attempt to obtain land for various development projects
especially for Kahama urban area expansion.
Through actual practices, the study specifically aimed at examining the source,
extent, and limits of land acquisition powers; the actual land acquisition processes
adopted by the Kahama Municipal Council; and to evaluate general challenges faced
by Local Government Authorities in implementation of land acquisition projects for
urban expansion in Tanzania. The study takes the type and design as descriptive
research with a case study strategy, the study relied on participatory observation with
questionnaires, interview and documentary review techniques to obtain the required
information from both primary and secondary sources.
The study found that majority of respondents were not aware of the power of
President of the United Republic to acquire any land for public purpose. All projects
implemented without prior statutory notices been serviced to PAPs informing that
their lands are subject to acquisition for public purpose as mandated by the Land
acquisition Act. Payments of compensation to PAPs ware effected by KMC instead
of the Fund as required by the laws of the country. It has been observed that there is
no national framework for administration of land acquisition procedures and that no
comprehensive resettlement policy to regulate RAP and harmonize local and
international guidelines. The study recommends to authorities responsible for lands
ensure comprehensive national framework for administration of land acquisition is in
place to help proper implementation of land acquisition for urban expansion in
Tanzania.
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ACKNOWLEDGMENTS
I would like to thank the Almighty God for the gift of life and endless blessings! The
accomplishment of this thesis involved many people who deserve thanks. First, I
would like to express my special thanks to the Registrar of the valuation Board Mr.
Shewiyo for the much-needed support during VRB training and field research work,
and to My supervisor Prof. Joseph L. Kironde for his untiring support and kindness. It
has been a pleasure working with you all together. Thank you very much.
I would also like to thank the then Kahama District Council (KDC) and Ushetu
District Council (UDC) under PO-RALG for having employed me; they provided a
physical platform for me to practice my academic profession. I am therefore greatly
indebted to all those who in one or many ways contributed towards developing my
education and professional carrier. I want to express special thanks to Dr. Agnes
Mwasumbi, Dr. Moses M. Kusiluka, and for my mentors Mr. Edward Mbagukila and
Mr. Alec Rwongezibwa for their valuable time and energy in accelerating my positive
vision in early days of professional practices. All that they did, means a lot to me only
to say thank you! I am extremely grateful to Mr. Gerson Malisa and senior valuer Mr.
Mshasha for their kindness. Thank you, “Teacher Malisa” for going the extra mile to
ensure that I enjoyed my internship at TKA Company Ltd. Special thanks to Mrs.
Evelyne Mgashwa, (Chief Valuer) for always being there when needed.
The number of professional colleagues that I should express my deepest gratitude to
is huge. Special thanks for Mr. Geoffrey Joseph Kitalile, Mrs. Genovefa G. Mazenge,
Mr. Frank Kanizio, and Chiremeji Rafael for some long and creative discussions. No
matter where my life leads me, I will always remember the good cooperation
accorded to me by all members of TIVEA/AREPTA FORUM WhatsApp group, first
for accepting me among them as I was and for their invaluable contribution and
critical discussion which enlightened my mind and knowledge and provided me with
so much joy.
I also, greatly thank the officials of the Kahama Municipal Council for their support
during field survey. Mr. Anderson Msumba and the Authorized Officers, Mr. Yusuph
J. Luhumba and their subordinates for their helpful support, I say thank you all.
Lastly, I would like to thank my family and friends: To my mother and my dear wife
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for their support and unconditional love. In due respect of the inputs borrowed from
various individuals to this thesis, I remain fully responsible for any mistakes that may
be contained herein.
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TABLE OF CONTENTS
Certification................................................................................................................... i
Declaration and Copyright ........................................................................................... ii
Abstract ....................................................................................................................... iii
Acknowledgments ....................................................................................................... iv
Table of Contents ........................................................................................................ vi
List of Tables............................................................................................................... ix
List of Figures/Charts................................................................................................... x
List of Statutes/Regulations/Cases .............................................................................. xi
List of Abbreviations and Acronyms ......................................................................... xii
CHAPTER ONE: THE PROBLEM AND ITS CONTEXT................................... 1
1.0
Introduction......................................................................................................... 1
1.1
Background Information ..................................................................................... 1
1.2
Statement of the Problem.................................................................................... 3
1.3
Objectives of the Study ....................................................................................... 4
1.3.1 Main Objective ................................................................................................... 4
1.3.2 Specific Objectives ............................................................................................. 4
1.3.3 Research Questions ............................................................................................. 5
1.4
Significance of the Study .................................................................................... 5
1.5
Scope and Area of Study .................................................................................... 5
CHAPTER TWO: THEORETICAL FRAMEWORK AND LITERATURE
REVIEW............................................................................................................ 7
2.0
Introduction......................................................................................................... 7
2.1
Definition of Terms ............................................................................................ 7
2.1.1 Market Value ...................................................................................................... 7
2.1.2 Fair Replacement Value ..................................................................................... 8
2.1.3 Property Valuation .............................................................................................. 8
2.1.4 Compulsory Acquisition ..................................................................................... 8
2.2.5 Eminent Domain ................................................................................................. 8
2.2.6 Expropriation ...................................................................................................... 9
2.2.7 Compensation ..................................................................................................... 9
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2.2.8 Crown Land ........................................................................................................ 9
2.2.9 Public Purpose .................................................................................................... 9
2.3
The Legal Framework of Land Acquisition in Tanzania.................................. 10
2.3.1 The German Imperial Decree of 26th November 1885 .................................... 10
2.3.2 Compulsory Acquisition Under the Land Acquisition Ordinance, of 1926 ..... 10
2.3.3 The Land Acquisition Act, No. 47 of 1967 ...................................................... 11
2.3.4 National Land Policy 1995 and Land Act & Village Land Act, of 1999 ......... 12
2.4
Principles Governing Compulsory Land Acquisition and Compensation ........ 13
2.5
Review of Empirical Studies ............................................................................ 14
CHAPTER THREE: RESEARCH METHODOLOGY ...................................... 18
3.0
Introduction....................................................................................................... 18
3.1
Research Design ............................................................................................... 18
3.2
Study Area ........................................................................................................ 18
3.3
Sample Population and Sample Size ................................................................ 19
3.4
Sampling Procedures ........................................................................................ 20
3.5
Source of Data and Collection Methods ........................................................... 21
3.5.1 The Questionnaire Survey Technique .............................................................. 21
3.5.2 The Interview Survey Technique...................................................................... 22
3.5.3 The Review of the Documentary/Literature Technique ................................... 23
3.6
Data Analysis and Presentation ........................................................................ 23
3.7
Limitation and Delimitation of the Study ......................................................... 23
CHAPTER
FOUR:
DATA
PRESENTATION
AND
DISCUSSION
OF
FINDINGS ....................................................................................................... 24
4.0
Introduction....................................................................................................... 24
4.1
General Information of the Respondents .......................................................... 24
4.2
Demographic Information of the Respondents ................................................. 25
4.3
Presentation of the Findings in Relation to Specific Objectives ...................... 26
4.3.1 The Source, Extent, and Limits of Land Acquisition Powers .......................... 26
4.3.2 The Actual Land Acquisition Processes Adopted by KMC (2000-2020) ........ 28
4.3.4 Assessment and Payment of Compensation ..................................................... 31
4.3.4 Time Taken by KMC to Effect Payment of Compensation ............................. 32
viii
4.3.5 Challenges Faced by Local Government Authorities in Land Acquisition for
Urban Expansion in Tanzania ........................................................................... 34
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS ................... 40
5.0
Introduction....................................................................................................... 40
5.1
Summary of Findings ....................................................................................... 40
5.2
Conclusion and Recommendations................................................................... 41
5.2.1 Provide Public Education for Land Holders ..................................................... 42
5.2.2 Obtain Statutory Authority and Service of Notice ........................................... 42
5.2.3 Payment Should be Through the Compensation Fund ..................................... 43
5.2.4 Ensure Prompt Payment of Compensation ....................................................... 43
5.2.5 Provide for Comprehensive National Framework for Administration of Land
Acquisition........................................................................................................ 44
5.2.6 Coordinate the Handling of Post-payment Claims ........................................... 44
5.2.7 Provide for Comprehensive Resettlement Policy ............................................. 44
5.4
Policy Implications ........................................................................................... 45
5.5
Area of Further Study ....................................................................................... 45
REFERENCES ......................................................................................................... 47
APPENDICES .......................................................................................................... 50
INDEX OF SURVEY QUESTIONS ......................................................................... 50
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LIST OF TABLES
Table 3.1: Categories of Respondents ...................................................................... 20
Table 3.2: Categories of Respondents ...................................................................... 22
Table 4.1: Actual Respondents and Response Rate ................................................. 24
Table 4.2: PAPs’ Age and Education Information ................................................... 25
Table 4.3: Administrative Officials and Professionals’ Information ....................... 25
Table 4:4 Showing the Kind and Mode of Payment of Compensation Adopted .... 32
Table 4:5 Showing the Time Taken by Authorities to Pay Compensation ............. 34
Table 4:6 Records and Reasons for Land Acquisition Disputes in Tanzania ......... 39
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LIST OF FIGURES/CHARTS
Figure 3:1 Map of Kahama Municipal Council showing wards involved in the study
................................................................................................................. 19
Chart 4:1 Showing Awareness of Power to Acquire Land in Tanzania.................. 27
Chart 4:2 Showing Participation of PAPs during Field inspection ......................... 30
xi
LIST OF STATUTES/REGULATIONS/CASES
The Constitution of United Republic of Tanzania, 1977.
National Land Policy, 2nd edition of 1997.
Land Acquisition Ordinance Cap 118 of 1926.
Land Dispute Courts Act, No. 2 of 2002 [Cap 216, R.E.2019].
The Export Processing Zones Act No. 11 of 2009.
The Investment Act, No. 26 of 1997.
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E. 2019].
The Land Act, No. 4 of [Cap 113, R.E.2019].
The Law of Limitation Act, No. 10 of 1971 [Cap 89, R.E. 2019].
The Road Act, No. 13 of 2007.
The Urban Planning Act, No. 8 of 2007.
The Valuation and Valuers (General) Regulations, 2018.
The Valuation and Valuers (registration) Act, No. 7 of 2016.
The Village Land Act, No.5 of 1999 [Cap 114, R.E.2019].
Government Notice No. 79 published on 4/5/2001.
Patman Garments Industries Limited v. Tanzania Manufacturers Limited. (1981)
TLB, 303.
xii
LIST OF ABBREVIATIONS AND ACRONYMS
CGA
Central Government Authority
KDC
Kahama District Council
KMC
Kahama Municipal Council
KTC
Kahama Town Council
LGA
Local Government Authority(ies)
NGO
Non-Government Organization
OP 4.12
Operational Policy No. 4.12 (World Bank)
PAPs
Project Affected People
PPP
Public Private Partnership(s)
TAMISEMI
Tawala za Mikoa na Serikali za Mitaa
UDC
Ushetu District Council
UTT
Unit Trust of Tanzania
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CHAPTER ONE
THE PROBLEM AND ITS CONTEXT
1.0 Introduction
This chapter provides a brief discussion on the background of the study. It establishes
the basis for research of the problem and develops its context throughout the study.
The chapter, therefore, provides the background information, statement of the
problem, objective of the study, specific research objectives, research questions, the
significance of the study, and scope and area of study.
1.1 Background Information
Tanzania is located in Eastern Africa between longitudes 290 and 410 East, and
latitudes 10 and 120 South. It is a relatively large country in terms of surface area
with a total area of 945,500 square kilometres. The country’s population is estimated
to be 57.6 million in 2020 with 35.23 per cent of Tanzania's total population living in
urban areas and cities. The last official census recording the population of Tanzania
occurred in 2012 and showed 44,928,923 people were living in the country with an
average annual growth rate according to the 2012 Population and Housing Census is
3.1 per cent (NBS, 2020).
Meanwhile, urbanization means the share of the urban population in the total
population of a country. There has been rapid urbanization of cities and towns mainly
because of rural-to-urban migration and natural population increase in Tanzania.
Works of the literature suggest that the main reason people move from rural areas to
urban cities and towns is the perceived lack of opportunities in rural areas (Gwaleba,
2018). Hill and Lindner, (2010) suggested that urban growth as a complex process
mainly results from the combination of factors including geographical location,
natural population growth, rural-to-urban migration, infrastructure development,
national policies, corporate strategies, socio-economic forces and globalization. In
this respect, the number of people living in cities increases compared to people living
in rural areas. Consequently, the urban management practice is increasingly needed to
account for direct and indirect impacts of urban growth in Tanzania cities and towns.
Nevertheless, Local Government Authorities as Planning Authorities are vested with
the power to control and further the development of urban areas in Tanzania. They
2
have to plan and control the usage of land and grant consent to develop the land
alongside preserving and improving amenities (URT, 2007). For fast-growing towns
like the Kahama Municipality, the challenge to obtain land for expanding its urban
boundaries is real. Kahama municipality has, therefore, been experiencing both urban
pull and urban push by attracting more new urban dwellers from the rural areas as
well as by high urban rates of natural increase pushing the boundaries outwards to
peri-urban areas.
Urban expansion means more rural lands have to be taken by Planning Authorities to
provide shelters to the urban population. Hence, the land is a vital component in the
urban economic process and an important asset. Everyone needs some land to live on
and work. Its ownership pattern and its use largely determine the structure of the
economy and shape economic processes. In the urbanization process, the land
previously used for agricultural and other related purposes is put to non-agricultural
uses such as housing, commercial infrastructure, public utilities and the like. When
rural land is converted into urban land, it commands far greater market value (Vijay,
2015).
According, to Tanzania all land is public land vested in the President as trustee, and
the state has an inherent power of an eminent domain. It can acquire land at any time
for fair, full, and prompt compensation.1 President is the custodian of land (in the
name of trustee), and individuals only have usufruct rights. Sections 19-23 of the
Land Act,2 recognize the existence of three land tenure systems: statutory or granted
rights of occupancy, the customary right and other informal rights (Kombe, 2010). Of
all the three regimes, the state retains the right to own the land and is entitled to take
it back at the end of the lease, or if leaseholders do not abide by the conditions of the
grant (ibid).
Sustainable development requires governments to provide public facilities and
infrastructure that ensure safety and security, health and welfare, social and economic
enhancement, and protection and restoration of the natural environment (FAO, 2008).
To obtain land when needed, governments have the power of compulsory acquisition
on land: they can compel owners to sell their land for public purposes. Compulsory
1
2
The Land Act, No. 4 of 1999, [CAP 113 R.E.2019].
The Land Act, No. 4 of 1999, [CAP 113 R.E.2019].
3
land acquisition is the process by which local and national governments obtain land
and premises for development purposes when they consider this to be in the best
interest of the community. Compulsory acquisition requires finding the balance
between the public need for land on the one hand, and the provision of land tenure
security and the protection of private property rights on the other hand. The process
of compulsory acquisition and compensation is governed by legislative statutes that
vary from one country to another.
In Tanzania, the principal legislation governing Compulsory land acquisition is the
Land Acquisition Act, 47 of 1967.3 Section 3 of the Act, empowers the President to
acquire any land for any estate or term where such land is required for any public
purpose. Under the Land Acquisition Act,4 and any other law related to Acquisition,
assessment and payment of compensation in Tanzania, the compensation payable to
dispossessed persons is purported to be based on the market value of the property or
land. Therefore, the spirit of compensation relies on the principle of equivalence
which the authorities have to ensure that all affected individuals and households
neither lose nor gain as a result of their land or property being appropriated for public
purpose in Tanzania.
1.2 Statement of the Problem
As a developing country, Tanzania still experiences rapid urban expansion mainly
because of rural-urban migration. The increase in urban population demands an
expansion of urban boundaries, and hence redevelopment becomes necessary and
unavoidable activity. Events of compulsory displacement of people from their native
lands in urban peripheries have been increasing from time to time in all towns and big
cities of the country. Kahama Municipal Council, like many other Planning
Authorities, tend to respond in a similar way to the market forces by pushing out and
expanding its boundaries to the urban suburbs.
Land take through compulsory acquisition require compliance to some key guidelines
that are provided by the policy and legal instruments. However, there are still
numerous challenges that surface during the implementation of compulsory land
3
4
The Land acquisition Act, No. 47 of 1967, CAP 118, [R.E. 2019].
The Land acquisition Act, No. 47 of 1967, CAP 118, [R.E. 2019].
4
acquisition processes mainly because of failure to adhere to key steps. The key steps
which must be involved in compulsory land acquisition processes include: Resolution
and planning to acquire the subject land; Legal preliminaries (Obtaining statutory
notices and servicing of notices); Field Works (Sensitization and Valuation of
compensable items); Payment of compensation to dispossessed persons; and
provision of post-payment complains. Notwithstanding the existence of the captioned
key steps involved in the acquisition processes, there have been a number of cases
where complaints and disputes are a concern of deprived or failures in observing the
policy and legal instruments that guide the compulsory land acquisition process
especially for those projects operated under the Local Government Authorities in
Tanzania.
1.3 Objectives of the Study
The study establishes two types of research objectives. General/Main objective and
Specific objectives. These research objectives have been linked with research
questions in order to attain the goal.
1.3.1 Main Objective
The purpose of this study is to examine the scope and extent to which policies and
statutes available are applied by local government authorities before, during and after
implementation of land acquisition for urban expansion in Tanzania.
1.3.2 Specific Objectives
Specifically, the study aims: (i) To examine the source, extent and limits of power as applied by Local
Government Authorities during the implementation of land acquisition for
urban expansion in Tanzania.
(ii) To examine the actual land acquisition processes adopted by the Kahama
Municipal Council.
(iii) To evaluate general challenges faced by Local Government Authorities in land
acquisition for urban expansion in Tanzania.
5
1.3.3 Research Questions
(i) What were the source, extent and limits of power as applied by Local
Government Authorities during the implementation of land acquisition for
urban expansion in Tanzania?
(ii) What were the actual land acquisition processes adopted by the Kahama
Municipal Council?
(iii) What are the general challenges faced by individuals (PAPs), officials, and the
Planning Authorities involved in land acquisition for urban expansion in
Tanzania?
1.4 Significance of the Study
Many researchers have often focused on land acquisition in the view of eminent
domain by governments and concentrated on PAPs complaints and disputes because
of the decision to acquire land and the acquisition process itself. The existence and
extent of application of public policies and statutes during the compulsory acquisition
process carried out by local government authorities for urban expansion owe a big
gap of study. The findings, presentations, and recommendations will be equally
important to individuals, students, professionals, researchers, non-government
organizations, local government authorities, government agencies and the general
public. The findings and recommendations will awaken the government and raise the
concern of interest in policymaking, legal changes and/or amendments related to
compulsory land acquisition, assessment and payment of compensation, development
of resettlement policy, implementation of the resettlement action plan (RAP), and
handling of post-acquisition complains and disputes.
1.5 Scope and Area of Study
This study is confined only to compulsory land acquisition projects implemented
from 2000 to 2020 in Kahama urban areas within Kahama Municipal Council.
Because of time availed for fieldwork, data collection involved seventy people
affected by acquisition project (PAPs) were selected as respondents, a total of only
eight wards were involved. The study involved two categories of land acquisition
projects, including involuntary resettlement in Mwendakulima ward for mining sites
6
and land acquisitions because of urban planning schemes inwards of Busoka,
Malunga, Mhongolo, Mhungula, Nyasubi, Nyahanga, and Nyihogo. The motivations
for the study have been on the actual acquisition process adopted by the Kahama
Municipal Council as a Planning Authority to attempt to acquire land for urban area
expansion.
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CHAPTER TWO
THEORETICAL FRAMEWORK AND LITERATURE REVIEW
2.0 Introduction
This chapter contains an index of key terms used in the study by providing a brief
discussion on the legal framework and synopsis of empirical grounding of relevant
works of literature borrowed to complement the study. By describing the basics of
land acquisition and payment of compensation practices, the author describes the
reviews and culminates the thinking, views and opinions of other scholars based on
global, regional, and country perspectives.
2.1 Definition of Terms
2.1.1 Market Value
The Market value of a property is the highest price in terms of money which the
property under appraisal should or could fetch in a competitive and open market
under conditions requisite for a fair sale. Implicit in this definition is the
consummation of a sale at a specified date and the passing of ownership from seller to
buy under conditions whereby: ▪
Both the Buyer and seller are economically motivated and are both acting
Prudently,
▪
The sale price is not affected by any undue influence,
▪
Both parties are well informed and well advised and are acting in what they
consider to be their own best interest,
▪
A reasonable time is allowed for exposure in the open market.
“…Market value is the estimated amount for which an asset should
exchange on the date of valuation between a willing buyer and a
willing seller in arms’ length transaction after proper marketing
wherein the parties had each acted knowledgeably and without
compulsion…” (Assimakopoulos et. all, 2003).
8
2.1.2 Fair Replacement Value
The terms Fair Replacement Value (FRV) means a value to the owner equivalent with
Market Value of the property with consideration of the extraordinary condition of
non-physical losses caused by the acquisition of the property.
2.1.3 Property Valuation
Property valuation means the carefully considered estimate of the worth of the asset
based on experience and judgment by identifying and assessing characteristics of a
given asset at a particular time. It is further explained to be a price expressed in terms
of money (normally in the local currency) payable for the property in an arm’s length
market transaction. Simply, an estimation of the worth of something, especially one
carried out by a professional Valuer.
2.1.4 Compulsory Acquisition
There is neither “Compulsory Acquisition” nor Land Acquisition” interpretation in all
relevant statutes, not even the term compensation or assessment which has been
interpreted in the context of Land acquisition in Tanzania.5 Accordingly, the phrase
refers to government’s power to force a person to sell his home, his business, or other
property to the government at a price it deems ‘just compensation’ which cannot be
the same as market value because there is no freedom of transactions in compulsory
acquisition (Ndjovu, 2003).6
2.2.5 Eminent Domain
The phrase means the inherent power of the state to seize a citizen's private property,
expropriate property, or seize a citizen's rights in property with due monetary
compensation, but without the owner's consent (Nabutola, 2009). The concept of
eminent domain was developed by Grotius the jurist in the seventeenth century. He
5
6
Land Acquisition and Compensation Assessment have been covered in various statutes in
Tanzania. They include: The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E. 2019]; Land
Act, No. 4 and Village Land Act, of 1999 [Cap 113 & 114, R.E.2019]; The Urban Planning Act,
No. 8 of 2007; The Valuation and Valuers (registration) Act, No. 7 of 2016; The Investment Act,
No. 26 of 1997; The Road Act, No. 13 of 2007; and The Export Processing Zones Act No. 11 of
2009.
Ndjovu, C.E. (2003), ‘Compulsory Purchase in Tanzania: Bulldozing Property Rights’ Published
PhD Thesis, Kungl Tekniska Hogskolan, Stockholm
9
opposed that the state had the power to take or destroy property for the public's
benefit, but he also believed that when the state exercised that power, it was obligated
to compensate the injured property owner for the losses.7
Therefore, with eminent domain, the property is taken either for government use or
by delegation to third parties who will devote it to public or civic use or, in some
cases, economic development. The most common uses of property taken by eminent
domain are for public utilities, highways, and railroads. Some jurisdictions require
that the government body offer to purchase the property before resorting to the use of
eminent domain.8
2.2.6 Expropriation
The term expropriation means the action by the state or an authority of taking
property from its owner for public use or benefit.
2.2.7 Compensation
The term compensation means the sum of money which land or property occupiers
might have realised if the property were sold in an open market by a willing seller at
the time of compensation. Also, it is used to refer to any other form of payment
(including payment in kind) in exchange of an interest or right acquired or taken by
the state for public use.
2.2.8 Crown Land
The phrase is used to mean land belonging to the British Crown. It also, refers to
lands belonging to the state in some parts of the Commonwealth.
2.2.9 Public Purpose
In the context of land acquisition in Tanzania, the phrase public purpose means the
use of land for public interests. The scope of public purpose is provided under section
4 of the Land Acquisition Act. It includes exclusive use by the government, or
7
8
John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.11 (4th ed. 1991).
Nabutola, W. L (2009); Compulsory Purchase and Land Acquisition in Kenya. TS 4C –
Compulsory Purchase and Land Acquisition II.
10
general public uses including improvement of public utilities such as trunk roads,
planning of new commercial/business centres, residential and other land use
requirements for expansion of a city or municipality. It also includes land for
development of public facilities such as schools, universities, ports and airports.
2.3 The Legal Framework of Land Acquisition in Tanzania
The legal atmosphere regarding Land Acquisition in Tanzania has progressed since
the colonial period, post-colonial era and to the present times of competitive market
economy. The review of literature provides the following series of legal reforms that
have taken place since then: -
2.3.1 The German Imperial Decree of 26th November 1885
This happened shortly after the colonization of Tanganyika by the Germans. It was an
initial stage of the colonial government towards maintaining her “eminent domain” in
the then Tanganyika. The German administration promulgated an Imperial Decree on
26th November 1885. The effect of the decree was that all land whether occupied or
not became crown land and vested in the emperor.9 Nevertheless, there was a proviso
which exempted ownership claims which private persons could prove. Further, there
was a circular issued in 1896 which aimed to make a distinction between ownership
claims with documentary evidence, and rights of occupation by the fact of cultivation
and possession by chiefs and native communities and since then things have never
changed.10
2.3.2 Compulsory Acquisition Under the Land Acquisition Ordinance, of 1926
The radical title was taken over by the British Governor in 1923 from the Germans.
The practice by government for acquisition of land remained almost the same during
the British era until when it’s the power was handed over to the President of the
nationalist government at independence in 1961 (Ndjovu, 2015). The Land
Acquisition Ordinance11 was passes by the British protectorate government of
9
10
11
CIDE (1995);
CIDE (1995);
Land Acquisition Ordinance Cap 118 of 1926
11
Tanganyika and continued to be used by newly independent government up to its
repeal in 1967. The ordinance was used to compulsorily acquired native lands for
public interests or purposes.
Literature suggests that all matters pertaining to procedures and methods of valuation
for compensation were to a large extent embedded in that Act, save for some little
extent on the office norms and practices. Yet, the ordinance did not specifically
dictate the method to be used or the type of value to be derived at. Only that section
14(a) to (c) of the Land Acquisition Ordinance provided the basis for assessing
compensation. It established the chief government valuer (CGV) who was required to
consult and receive a written report from any officer of the public works, lands,
surveys, agriculture, forestry or railways department regarding property values
thereon. In determining market values for compensation purposes the written reports
given by public officials were used to ascertain the value. Similarly, the chief
government valuer has to provide acceptable supporting arguments regarding the
valuation done and were to be made available when demanded by the Court (Ndjovu,
2015).
2.3.3 The Land Acquisition Act, No. 47 of 1967
The Land Acquisition Act, is the principal legislation regarding compulsory land
acquisition in Tanzania. It grants to the President, the power to acquire any land for
public purpose. The President may, subject to the provisions of section 3 of the Act,
acquire any land for any estate or term where such land is required for any public
purpose.12
Generally, it is the local or central government that initiates the process of land
acquisition for public use. The process of land acquisition in Tanzanian involves four
key steps: they are planning and the decision to acquire land, legal preliminaries
including getting statutory authority and serving notices, field investigations
including valuation, and payment of compensation to those being dispossessed
(Kombe, 2010). For efficient, fair and legitimate implementation of land acquisition,
attention to the procedures is critical in order to minimize avoidable disputes.
12
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019]
12
Implementers, always, have to appreciate that land acquisition is a power of
government, but it is also the process by which that power is exercised (FAO, 2008).
2.3.4 National Land Policy 1995 and Land Act & Village Land Act, of 1999
The National land policy of 1995 and both the Land Act and Village Land Act of
1999 provides that all land in Tanzania is public land. They also recognize that an
interest in land has value and hence provide for the protection of such interests in
every transaction related to land and all unexhausted improvement on land. The
president is vested with trusteeship role in regard to public land for and on behalf of
all citizen of Tanzania.
The Land Policy affords for full recognition of land rights and interests of peri urban
dwellers. As those rights and interest are acquired by the state, the dwellers should be
re-allocated plots/lands for their use (Msangi, 2011). The policy on section 6.3.0
emphasizes that the authorities should undertake formal procedures by invoking a
declaration of an areas subject to development as “planning areas” prior to its
acquisition and re-designation of peri urban areas for urban development (URT,
1995).
As peri-urban lands are subject to acquisition for urban expansion, authorities must be
confined to fundamental principles of the National Land policy of 1995. The key
fundamental principles that ensures protection of rights and interests in lands and
which confers mandatory payment of compensation when land is taken are provided
under section 3(1)g-h of the Land Act.13 Authorities should take into account that an
interest in land has value and that value is taken into consideration in any transaction
affecting that interest; and to pay full, fair and prompt compensation to any person
whose right of occupancy or recognised long-standing occupation or customary use
of land is revoked or otherwise interfered with the State (URT, 1999). In urban areas,
peri-urban lands constitute of customary and quasi-customary tenures which must be
extinguished by observing proper protocols through compulsory acquisition and
payment of full, fair and prompt compensation. The rationale is that the process of
13
The Land Act, No.4 of 1999 [Cap 113, R.E.2019].
13
expansion or creation of towns, the declaration of planning areas does not
automatically extinguish customary rights.14
2.4 Principles Governing Compulsory Land Acquisition and Compensation
Lan acquisition is inherently disruptive regardless of generous compensation and fair
and efficient procedures. The repositioning of people from their established homes,
businesses and communities entails substantial human costs. Where the process is
designed or implemented poorly, the economic, social and political costs may be
enormous (FAO, 2008).
Generally, there are two theories used as basis for payment of compensation the
substitution or replacement theory of damages (payment in kind) and the
indemnification theory (monetary compensation). The theories originated from the
narration of King Ahab of Samaria when he offered Naboth a choice between the two
as compensation for his vineyard (1King 21). Thus, when countries enact land
acquisition statutes, they must observe three principles which includes: Protection of
due process and fair procedure, good governance, and Equivalent compensation
(FAO, 2008).
The statutes should reasonably limit the power of the government to compulsorily
acquire land by providing confidence to people in the justice system and by limiting
discretion of officials. Also, rules must empower people to protect their land rights,
and increase the perception of tenure security. Good governance reduces the abuse of
power and opportunities for corruption. All responsible institutions should be
accountable for the good faith implementation of the legislation. If the statutes are not
observed by officials, then, that undermines the acceptability of the process in
compulsory land acquisition. The claimants (PAPs) should be paid compensation
which is equivalent to the loss suffered (Maria, 2016).
14
Extracted from Policy Statement provided under section 6.3.1 of the National Land Policy, 2nd
edition. The aim is to help Planning Authority to avoid conflicts between statutory and customary
tenure.
14
2.5 Review of Empirical Studies
The concept of compulsory land acquisition has a long history. During biblical
societies as well as during the Romans and Greeks era there still exist narration which
indicates the existence of eminent domain. King Ahab of Samaria,15 who sought the
vineyard of Naboth, offered Naboth a choice of compensation either a better vineyard
(under substitution or replacement theory of damages) or the vineyards worth in
money (under the indemnification theory). Naboth asserted a right of refusal, which
has never existed in the laws, and paid with his life (Bryant, 1972). In the Romans
law there was no general law of expropriation, but the taking of property for public
works was covered by special statutes. The Annals of Tacitus illustrates that the
Roman government used these powers to acquire the land and materials to build and
repaired aqueducts. Among the Greeks the taking of property for public use was also
evident. A dispute between Athens and Eleusis was settled by providing for
arbitrators of the value of the certain properties sought to be acquired by the
Athenians, with three valuers on either side (Bryant, 1972).
In India the practice of land acquisition by public authorities started back in 1824.
The British Government of India introduced regulations to facilitate urban land public
acquisition from individuals. The reason given by the authority to acquiring the land
without consensus was the need for constructing public buildings. Later in 1850 on,
the scope was extended to facilitate the provision of infrastructure projects such as
railways (Léna, 2012).
The legal system in China, both the People’s Republic of China Constitution 1954
and the Land Administration Law 1986 specify that the state may acquire land for its
use in accordance with the law for public interest. In practice, the Law of Property
Right in China, provide for land acquisition and land requisition which are executed
for public interest. Although, both land acquisition and land requisition are
compensable and carried out in accordance with specified regulations. The land
requisition is practiced only under in the case of urgency, such as emergency rescue,
disaster relief and other emergency cases and the properties have to be returned to
their owner after use because it does not transfer ownership (Anuar, et. all., 2008).
15
1King 21: The Bible, New Revised Standard Version, 1989.
15
In Nigeria, the contact of land acquisition means acquiring of the entire title of the
land holder whatever the nature and extent of that title may be (Oyedele, 2015). The
consequence of land acquisition is to provide an available free of use lands. The
governments appreciate the importance of compensation of land and property rights
which are the major key in economic growth and development (Ominrin, 2002). Also,
the experience in other countries in sub-Saharan Africa like Kenya, Ghana, Ethiopia,
Nigeria, South Africa and Zimbabwe, just to mention a few, the inherent power to
acquire land for public purpose is provided in their own constitutions.
In Ghana, the State’s power of eminent domain has been exercised since colonial
times under various enactments. The rationale for invoking the power is to ensure
socio-economic development for the public good. The administration of land
acquisition and management of state lands have resulted into several unresolved
challenges. Among them are the acquisition of lands far in excess of actual
requirements, unpaid compensation in respect of some of the acquisitions,
encroachment on acquired lands, lack of intergenerational equity in the utilization of
paid compensation, change of use of compulsorily acquired land as against the
purpose of the acquisition, optimizing the use and economic returns of state lands,
and private sector participation in the development of compulsorily acquired land.
There is another category of lands occupied by the state without any acquisition,
depriving the land owners the opportunity to demand compensation. The result is loss
of public confidence in the state machinery for the management of land, leading to
tension between the state and customary land owners, massive deliberate
encroachment of state lands, and challenging the state’s legitimacy to claim control
over compulsorily acquired lands. Under the Ghana Land Administration Project,
policy proposals are to be developed to deal with the outstanding issues of
compulsory acquisition and also make proposals to guide future compulsory
acquisitions (Larbi, W. O. 2008).
In Kenya, compulsory acquisitions arise when the State or Government decides to
take over a property without private negotiations, thus the term “compulsorily”
acquire property for public use without the consent of the owner but with a just
compensation. The acquisition is done under statutory legislation and the act of
acquiring aims at general benefit of the community as a whole. The powers to
16
compulsorily acquire land in the public interest in Kenya is embodied in articles 75,
117 and 118 of the Constitution of the Republic of Kenya as well as other legislation
including the Land Acquisition Act. Cap 295 of Laws of Kenya; The Water Act; The
Electric Power Act, and the Local Government Act. Cap 265.16
In Uganda land acquisition is governed by the Land Acquisition Act Cap. 226 which
provides legal mandate to government to acquire land for public purpose. The
government is obliged to compensate the land holder without delay, fairly and
adequately (Article 26 of the Constitution and Section 42 of the Land Act).
The perspectives of land acquisition in Tanzania can be traced back during the
colonial era. In the colonial history, the meaning, use and interpretation of “public
purpose” is recorded to have been very wide and included among others, sanitary lane
to some plots, construction and widening of roads; eradication of mosquito breeding
grounds in the anti-malaria campaigns; development schemes for residential
settlements; public housing especially for Europeans; public water supply projects;
harbour expansion programs; construction of factories, and many more (Ndjovu,
2015).
Meanwhile, during the colonial era, the owners of land rights which were legally
recognized deserved compensation regardless whether the affected property was in a
surveyed area or not. However, this was not always the case as seen in the Kisutu
demolition case narrated above. The illegal squatters and those who wanted to be
double compensated by a project were usually not considered as it is the same today.
Besides, any compensation claimant had to have a documentary proof beyond
reasonable doubt as to his or her entitlement. Colonial Governor was required by law
and practice to demand a valid, written land title from any claimant before one ‘s
claim was entertained in compensation. This rule applied not only to private
individuals but also to the government itself. Since colonial government considered it
to be fair paying compensation for the loss in property rights, it similarly found it
important to ensure that such payments went to the rightful affected person(s) and
their heirs and not otherwise (Ndjovu, 2015).
As per the study by CIDE, 1995 in then Tanganyika and there after Tanzania; the
state has consistently taken the ambiguity in Land ordinance Cap. 113 as to the exact
16
Kiviu R.M. (2009); Valuation for Compulsory Acquisition. The Journal of Building Digest.
17
nature of the President's title over the lands to acquire privately owned land for any
reason and sometimes to reallocate to some other private interests. However, what
must be asserted is that the Land Ordinance Cap. 113 of 1923 and the new Land laws,
1999 confers upon the President the “eminent domain” and according to
constitutional jurisprudence, powers there under can only be excised for public
purpose only. Apparently, this is what the legislature had in mind when it enacted the
Acquisition of Lands Act, 1967 which provides expressly that “The President may ....
acquire any land for any estate or term where such land is required for any public
purpose" (s.3).
The study by Ndjovu,17 gives details on the effects during the colonial era suggesting
that the native Africans were affected negatively by these acquisition practices.
There were some of the so-called public purposes were unjustified because they
included non-public programs which were meant to perpetrate colonial policies like
racial segregation and systematic economic deprivation. In many of the acquisition
cases, the affected people had to agree not only to the proposed land acquisitions, but
also to the compensation amounts given.
Further, there were also considerable misinterpretation or maneuver/manipulation of
legal clarity on public purposes. The clauses were often as exemplified in the case of
Kisutu demolitions undertaken in 1935. Experience of the Kisutu case shows that
land acquisition was at times maneuvered for other social and political ends via
public purpose clauses. Kisutu area, which was un-surveyed and unplanned, was to be
taken without compensation because land owners had no ownership papers despite
their claims through adverse possession (Ndjovu, 2015).
17
Ndjovu, C.E. (2015); Compulsory Land Acquisitions in Tanganyika: Revisiting the British
Colonial Expropriation Principles and Practices, International Journal of Scientific & Technology
Research Volume 4, Issue 12, December 2015.
18
CHAPTER THREE
RESEARCH METHODOLOGY
3.0 Introduction
This section provides for how the study was designed and how both primary and
secondary data were collected. It presents the procedure and techniques used in
gathering data. The methodology applied, aimed at enabling the researcher to acquire
information and deduce conclusions about the research topic.
3.1 Research Design
The study used a descriptive survey design because it enables the researcher to collect
a large quantity of in-depth information about the population being studied, having its
base on the case study strategy. This study embraced a combination of inquiry within
qualitative and quantitative approaches.
3.2 Study Area
The study was conducted in Kahama municipality area, located in north western
Tanzania and the capital of the Kahama district of Shinyanga Region. It is situated at
distance approximately 109 kilometres (68 mi), by road, south-west of Shinyanga
where the regional headquarters are located. The town is approximately 536
kilometres (333 mi), by road, north-west of Dodoma, the capital of Tanzania.18 The
study area was delimited within an approved zoning plan area having eight
neighbourhoods (called wards) comprising of Busoka, Malunga, Mhongolo,
Mhungula, Mwendakulima, Nyahanga, Nyasubi and Nyihogo as shown in Figure 3:1
below.
Accordingly, a series of Land Acquisition Projects have been considered which took
place in Kahama Urban Area in the years between 2000 to 2020. The purpose of
deliberating a series of Acquisition Projects was to gauge and review the level of
compliance to both legal and administrative practices and thereafter evaluate the
envisaged policy and practice issues. The chosen acquisition projects include the
Kapipi Block “Q Project, Mbulu Block “P” and Block “S” Project, Busoka Block “Y”
Project, Shunu Block “YY” Project, Lugela “UTT” Project, Malunga Block “L” and
18
2021 GlobeFeed.com. Retrieved on 15th November 2021
19
Mwanva Extension Project, Bukondamoyo Project, Nyihogo Mayila-Extension
Project, Buzwagi Resettlement Project in Mwendakulima and Mwime Wards,
Sokola-Mhongolo Extension Project, and Nyakato Extension (Block “O”) Project in
Nyasubi Ward.
Figure 3:1 Map of Kahama Municipal Council showing wards involved in the
study
Source: Kahama Municipal Council
3.3 Sample Population and Sample Size
The target population of this study was made of all people affected by the
implemented projects (PAPs) and officials involved in land acquisition projects
within the Kahama Urban Area. For convenience of scrutiny, the researcher adopted a
sample size of 70 respondents which comprised of People Affected by Projects
(PAPs), Valuers from Kahama Municipal Council, Valuers from practicing Valuation
Firms, Authorized Officer for Lands, Advocates from Legal Firms in Kahama,
20
Officials from Ward Tribunal, Ward Councilors, Official from Kahama DLHT, and
Legal Officers (KMC) as summarized in Table 3.1 below.
The respondents were chosen based on the required information and their knowledge
so as to accomplish the study. Thus, the selection of the sample and its diversity was
done to ensure representatives are from the categories of stakeholders in order to
reduce the sampling error and hence to ensure the validity of the research work.
Table 3.1: Categories of Respondents
S/No
Respondents’ Category
Target Respondents
1
People Affected by Projects (PAPs)
50
2
Valuers from Kahama Municipal Council
2
3
Valuers from Valuation Firms
5
4
Advocates from Legal Firms in Kahama
3
5
Authorized Land Officer
1
6
Officials from Ward Tribunal
3
7
Ward Councilors
3
8
Official from Kahama DLHT
1
9
Legal Officers (KMC)
2
Total
70
Source: Author’s Sampling, 2021
3.4 Sampling Procedures
The study adopted the purposive sampling technique with a case study strategy. This
sampling procedure helped the researcher to identifying and reach the key
respondents for the study. The procedure for sampling the key respondents was
highly influenced by the researcher’s expert judgment in selecting appropriate
individuals to represent the population.
Furthermore, the researcher considered such variables as land occupation, experience
in valuation profession especially valuation for land acquisition purpose, experience
in litigating and/or adjudicating land related disputes, obligation to administer land
21
acquisition projects, and general and administrative roles within the planning
authority.
3.5 Source of Data and Collection Methods
Intentionally, this study utilized both primary and secondary sources of data and
accordingly, used three data collection methods for the purpose of achieving the
objectives of the study. The methods involved interview survey technique, the
questionnaire survey technique, and documentary review. For confidentiality
purposes, details of individuals, the due amounts paid, names of respondents have
been kept anonymous. The desired data from primary source ware obtained directly
from the respondents involved in the deployed interview and questionnaire surveys.
In the other hand, secondary data contributed towards the formation of background
information and helped the researcher to build constructively the research-work. This
category of data largely, were obtained from various literatures intended to
comprehend thoroughly the findings of this study.
Data collected were first sorted out and analyzed objectively without the researcher’s
influence or bias in order to provide impartial results of the study. Data groups
included copies of field inspection forms of individuals involved, copies of valuation
reports and payment compensation schedules for assessment approved between the
year 2000 to 2020, claims documents of dis-satisfied individuals (PAPs), methods
and mechanism used by officials to handle claims, involvement of professionals in
assessment and payment of compensation and handling of post payment claims.
3.5.1 The Questionnaire Survey Technique
The study deployed 50 questionnaires out of 70 respondents. The PAPs were the only
category of respondents involved in the questionnaire survey technique because of
their level of knowledge which required pre-determined answers to choose from.
Also, administration of questionnaires helped to collect information from 50
respondents within a reasonable time.
The main focus of the questionnaires was to probe on the compliance requirements of
both the land policy and the statutes during implementation of land acquisition
22
projects effected in Kahama urban area.19 The advantage of using questionnaire
technique is its ability to help the researcher analyze the data easily and helps to
compare and augment the responses easily.
3.5.2 The Interview Survey Technique
In order to attain the research objectives, the researcher deployed the interview survey
technique for a total of ten (20) respondents as indicated in table 3.2 below; they
include: Valuers from valuation firms, Valuers from Kahama Municipal Council,
Authorized Officer (Land), Officials from Ward Tribunals, Official from Kahama
DLHT, Ward Councilors, and the Legal officer for the Kahama town council. This
technique involved semi-structured face to face interviews with the respondents and
the researcher allowed freedom to alternative questions and responses.
Table 3.2: Categories of Respondents
S/No
Respondents’ Category
Target Respondents
1
Valuers from Kahama Municipal Council
2
2
Valuers from Valuation Firms
5
3
Advocates from Legal Firms in Kahama
3
4
Authorized Land Officer
1
5
Officials from Ward Tribunal
3
6
Ward Councilors
3
7
Official from Kahama DLHT
1
8
Legal Officers (KMC)
2
Total
20
Source: Author’s Sampling, 2021
19
Statutes commonly used in executing land acquisition assignments. They provide both mandatory
and administrative guidelines. They are Land Acquisition Act. No. 47 of 1967, Land Act. No. 4 of
1999, Village Land Act. No. 5 of 1999, and the Urban Planning Act. No. 8 of 2007.
23
3.5.3 The Review of the Documentary/Literature Technique
The researcher reviewed related works of literatures (documents and articles) for the
purpose of finding out the information necessary and which were considered relevant
to contribute to this study. This approach enabled the researcher to obtain all the
borrowed information contained in this research-work and hence constitute part of the
secondary data. Specifically, the documents were books, journals, statutes,
government policy papers (government gazette), and thesis both published and nonpublished reports. The study also involved internet searches to supplement quick
access to digital literatures.
3.6 Data Analysis and Presentation
This study relied on descriptive approach and the analysis of data and presentation
has been done using descriptive statistics with the presentation being in the form of
tables and pie charts for different variables. The descriptive statistics are used to
describe or summarize data in ways that are meaningful and useful. In the other hand,
qualitative data were analysed qualitatively through context analysation approach in
which the researcher tried to comprehend and interpret the respondents’ views. It
involved putting in writing and then matched the explanations with the literature and
empirical findings from other studies.
3.7 Limitation and Delimitation of the Study
This study though accomplished, it faced various challenges especially issues with
sample and selection of key respondents. The study adopted a series of acquisition
projects that took place within the year 2000 to 2020, thus selecting an individual to
represent, for example, the PAPs was a challenge. Accordingly, some PAPs did not
avail due corporation at the time of administering the questionnaires.
Some respondents were not timely supportive in responding to the questionnaires and
interview by giving excuses of tight-schedule on their daily timetable. Also, the lack
of previous research studies conducted on similar topic within the same case study
area limits the scope of literature and the tri-angulation of findings.
24
CHAPTER FOUR
DATA PRESENTATION AND DISCUSSION OF FINDINGS
4.0 Introduction
This chapter presents data and information gathered during the survey. It provides the
response rate, demographic information of the respondents, and key finding on
specific objectives. The information has been presented through the organization of
data into tables and charts, so that logical and statistical conclusions can be derived
from various dimensions. The chapter features two main parts with a number of
subparts, the first part provides respondents information and the second stands for
respondent’s views on specific objectives.
4.1 General Information of the Respondents
The researcher established appropriateness in representation during selection of
respondents. As stated, the study used 70 respondents from various categories of
stakeholders in a view of their roles in implementation of land acquisition projects.
The responses were analyzed to ensure there is no missing of significant information
as indicated in table 4.1 below.
Table 4.1: Actual Respondents and Response Rate
S/No
1
Respondents’ Category
People Affected by Projects
Target
Respondents
Actual
Respondents
NonRespondents
Responses
(%)
No Responses
(%)
50
48
2
96
4
2
2
0
100
0
(PAPs)
2
Valuers from Kahama
Municipal Council
3
Valuers from Valuation Firms
5
5
0
100
0
4
Advocates from Legal Firms
3
3
0
100
0
in Kahama
5
Authorized Land Officer
1
1
0
100
0
6
Officials from Ward Tribunal
3
3
0
100
0
7
Ward Councilors
3
0
100
0
8
Official from Kahama DLHT
1
1
0
100
0
9
Legal Officers (KMC)
2
2
0
100
0
Total
70
68
2
97
3
Source: Author’s Study Findings, 2021
25
4.2 Demographic Information of the Respondents
The demographic information for PAPs includes age, gender, and education level
whereas for administrative officials and professionals includes age and education
level as shown in Table 4.2 and Table 4.3 below. The table shows the responses based
on age category, whereas all respondents were above the age of 30. This indicates that
respondents were mature enough to have experienced practical issue relating to land
acquisition.
Table 4.2: PAPs’ Age and Education Information
Details
Age (years)
Gender
Details
Education Level
Categories
21-30
31-40
41-50
51-60
Above 60
Male
Female
Categories
No Formal
Primary
Secondary and above
TOTAL
Actual Respondents
0
5
23
7
13
44
4
Actual Respondents
4
25
19
Percentage (%)
0
10
48
15
27
92
8
Percentage (%)
8
52
40
48
100
Source: Author’s Study Findings, 2021
Table 4.3: Administrative Officials and Professionals’ Information
Details
Age (years)
Details
Education Level
Categories
21-30
31-40
41-50
51-60
Above 60
Categories
Primary
Secondary
Certificate and Diploma
Degree & Post graduate
TOTAL
Source: Author’s Study Findings, 2021
Actual Respondents
0
8
11
1
0
Actual Respondents
1
4
1
14
Percentage (%)
0
40
55
5
0
Percentage (%)
5
20
5
70
48
100
26
The rationale for reviewing the respondents’ age and education level was intended to
assess the knowledge and ability of understanding the practical challenges that could
be envisaged during implementation of land acquisition projects. For PAPs, age and
gender have something to do with procedures of land holding especially customary
rules on village land which remains to be one of the challenging issues in
implementing reforms in land tenure systems.
Meanwhile, education and experience are considered to be useful tools in enhancing
the performance especially when it brings in the ability to expertise the job
assignment. The study responses indicate that there were 14 professionals with a
degree and/or post graduate education level. This indicates that they were aware of the
challenges envisaged during implementation of land acquisition assignments.
4.3 Presentation of the Findings in Relation to Specific Objectives
This part presents a discussion of information in regard to specific objectives of the
study. The study aimed at examining the source, extent, and limits of land acquisition
powers; the actual land acquisition processes adopted by the Kahama Municipal
Council; and to evaluate general challenges faced by Local Government Authorities
in implementation of land acquisition projects for urban expansion in Tanzania. In
providing their opinion, respondents were subjected to different interrogative
techniques as discussed under the methodology in chapter three.
4.3.1 The Source, Extent, and Limits of Land Acquisition Powers
The position of the Land Acquisition Act20 is that it vests the power to acquire any
land for any estate or term to the President where such land is required for any public
purpose.21 On the other hand, the Land Act22 vests all land in Mainland Tanzania in
the President as trustee for and on behalf of all the citizens of Tanzania. This gives
the state the powers to take land for public use without necessarily seeking the
owner’s consent (Ndjovu, 2003). The spirit of the Land Policy23 and the Land
20
21
22
23
Sec. 3 of Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
Definition of public purpose is provided in details under sec. 4 of Land Acquisition Act, No. 47 of
1967 [Cap 118, R.E 2019].
Sec. 4 (1) of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
National Land Policy, 2nd Edition, 1997
27
Acquisition Act,24 is that when land is compulsory acquired for public purpose, a fair,
full and prompt compensation must be payable.
Nevertheless, the survey on respondents’ view in regard to the powers to acquire land
shows different viewpoints. When PAPs were asked about the power to acquire land,
39 did not mention the president and 3 from administrative category had the same
response which indicate that a total of 42 out of 70 respondents were not familiar with
such legal requirement as can be illustrated in Chart 4:1below.
Chart 4:1 Showing Awareness of Power to Acquire Land in Tanzania
Source: Author’s Study Findings, 2021
Empirical evidence suggests that the Presidents power to acquire land for public
purpose could be review when challenged before the court of law. Thus, the president
cannot acquire land for any other purpose which cannot be considered to be public
purpose. A dispute or disagreement may occur should the power of the President to
acquire land is exercised against any right of occupancy which is not for public
purpose. The position of section 13(b & e) of the Land Acquisition Act, provides a
framework by directing parties (Minister or PAPs) to institute a suit in the Court25 for
the determination of the dispute should there be no agreement within six months since
the publication of the notice to acquire land. The judicial review of administrative
24
25
Sec. 11 of Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
Section 37(1)(c) of the Land Dispute Courts Act, No. 2 of 2002 [Cap 216, R.E.2019]
28
action extends to the exercise by the President of the United Republic of power to
revoke rights of occupancy as it was decided in Patman Garments Industries Limited
v. Tanzania Manufacturers Limited.26
Komu, 201427 suggested that it is not possible to resist land acquisition in Tanzania
as the eventual ownership right is in the state and the President has the absolute
power to revoke any land rights. The assertion is proved to the contrary by the
decision of the Patman Garments Industries Limited v. Tanzania Manufacturers
Limited case and the legal possibility to institute a suit to the High Court on matters
regarding land acquisition as has been discussed herein above.
4.3.2 The Actual Land Acquisition Processes Adopted by KMC (2000-2020)
In examining the actual procedures adopted by the Kahama Municipal Council in
implementing land acquisition projects for urban expansion, the four key steps,
suggested by Kombe28 were used as main reference measures as discussed below: (i) Planning and the Decision to Acquire Land;
The study found that KMC established purposes for each and every project by
identifying the target area (land to be acquired) and reasons as to why that particular
land be acquired. Decision to acquire land were reached through resolutions made by
formal council meetings. Also, the responses indicate that the factors considered were
simplicity in the process, proximity of public utilities, and the extent of existing
physical development over the land subject to acquisition.
(ii) Legal Preliminaries (Getting Statutory Authority and Serving Notices);
The Minister responsible for Lands is vested with power to issue notice for every land
acquisition project in order to initiate the process. Subject to section 6 and 7 of the
Land Acquisition Act,29 two mandatory notices should be issued; they are the Notice
of Intention to Take Lands and to Yield Possession (to hand over or relinquish one's
26
27
28
29
(1981) TLB, 303.
Komu, F (2014); Conceptualizing Fair, Full and Prompt Compensation – the Tanzanian Context of
Sustaining Livelihood in Expropriation Projects. Journal of Land Administration in Eastern Africa.
p.263, JLAEA Vol 2 Issue 2, July 2014.
Kombe, W. J. (2010), ‘Land acquisition for public use; emerging conflicts and their social political
implications’ Crisis state working papers Series No.2; October, 2010.
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
29
possession of land). Service and publication of notice is provided under section 8 of
the Land Acquisition Act.30 It requires that every notice (under S. 6 & 7) shall be
served either personally on the persons to be served or shall be left at their last usual
place of abode or business.
Nevertheless, the study found that KMC did not pursue to obtain any official and
mandatory notices as all land acquisition projects under review were implemented in
absence of the notices. Thus, requirement to obtain statutory authority and serving of
notices as manded under section 8 of the land acquisition Act was not adhered at all.
(iii) Field Investigations Including Valuation;
The fieldworks are often preceded by community sensitization to bring the residents
of subject land into awareness of the awaiting acquisition project(s). The exercise
helps people know the timeline and probably enable them to arrange for their physical
presence during the implementation of physical field inspection. The team use the
sensitization activity to clarify key issues particularly compensable items and be able
to appreciate the perception of PAPs towards the impending project(s).
The study observed that majority of land holders (property owners) were physically
present during sensitization and when their compensable items were inspected and
valued (see Chart 4:2) below. Though, many were physically present but could hardly
understand the mandatory requirements as well as what the valuers and other officials
were actually doing; of all the 48 Ex-PAPs interrogated, non were aware of the
mandatory requirement to issue notice of intention to acquire land and hence none
asked about the notice.
On the other hand, the Land (Compensation Claims) Regulation, 2011, require that a
notice to claim for compensation be issue by the Commissioner or the Authorized
officer as under Regulation 6. Unfortunately, the study found that there was no any
notice to notify the occupier to claim for compensation and that the valuation for
compensation purpose was not initiated by Commissioner or the Authorized officer
contrary to regulation 7.31
30
31
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
Government Notice No. 79 published on 4/5/2001.
30
Chart 4:2 Showing Participation of PAPs during Field inspection
Source: Author’s Study Findings, 2021
(iv) Payment of Compensation to those being Dispossessed;
In order to examine the practices of KMC on compliance of payment of
compensation to those being dispossessed, the position of section 11 of the Land
Acquisition Act,32 and provision of Regulation 8 and 9(1) of the Land (Compensation
Claims) Regulation, 201133 were involved. Compensation should be paid by the
government and the Commissioner for Lands is tasked to submit the compensation
schedules together with compensation claims to the Land Compensation Fund which,
upon verification, will either accept or reject payment.34 The law states categorically
that the Fund shall be managed by the Trustees which shall be a body corporate
capable of suing and being sued, and capable of making contracts and of acquiring,
holding and disposing of property(ties).35
However, the procedure adopted by KMC to effect payment of compensation to PAPs
did not abide to the legal guidelines instead payments were made directly to PAPs by
the acquiring authority. The acquisition project undertaken in Mwendakulima was not
intended for urban expansion but to develop the acquired land as mining site. The
32
Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E 2019].
Government Notice No. 79 published on 4/5/2001.
34
Sec. 173 of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
35
Sec. 173(2&3) of Land Act, No. 4 of 1999 [Cap 113, R.E.2019].
33
31
resettlement thereafter resulted into urban expansion as PAPs were given alternative
houses in neighbouring areas. For those PAPs whom were eligible for monetary
compensation, the beneficiary of the project – African Barrick remitted the amount
direct into PAPs bank accounts. Generally, the authorities adopted a mixed approach
of kinds of compensation in the sense that there was a combination of monetary
compensation, plots, house and grains. All payment in terms of money compensation
was only through bank deposit (see Table 4:4 below).
4.3.4
Assessment and Payment of Compensation
The guidelines for the assessment and payment of compensation are provided under
section 14 of the Land Acquisition Act. The Act, places the mandate to the minister
or the court as the case may be to take into consideration of Value of the land, any
probable enhancement of the value of the residue (remain) land, damage, if any, due
to severance of such land or other injurious effects. Also, it directs that the valuer
should ignore the probable enhancement in the value of the land in future and as well
not to take into account of the value of the land where a grant of public land has been
made. Similarly, the position of section 50(2)(a) of the Valuation Act36 and section
3(1)(g)(i) of the Land Act37 provides for values and the assessment be based on
market value.
In practice, the study found that KMC was able to adhere to most of requirements in
regards to assessment of compensation. Compensable items were physically inspected
and values were assessed on the basis of market prices prevailing on the date of
valuation. Valuers observed all protocols on assessment during field inspection by
engaging the PAPs, local leaders, and by deploying Valuation Form No. 3 which is
about property inspection for compensation purpose.38
36
The Valuation and Valuers Registration Act, No. 7 of 2016
The Land Act, No. 4 of 1999 [Cap 113, R.E.2019]
38
Made under Regulation 64(1)(e)(iv) of the Valuation and Valuers (General) Regulations, 2018.
37
32
Table 4:4 Showing the Kind and Mode of Payment of Compensation Adopted
S/N
Wards
Kind/Type
Mode of delivery
Observation
1
Busoka
Money and Plots
Cheque through bank
deposit. Plots allocated
direct to PAPs.
Less complains, bank
deposit not friendly to
most of PAPs.
2
Malunga
Plots Only
Plots allocated direct to
PAPs.
Complains increased with
time. Mainly because of
family or relatives
conflicts.
3
Mhongolo
Plots Only
Plots allocated direct to
PAPs.
Complains increased with
time. Mainly because of
family or relatives
conflicts.
4
Mhungula
Plots Only
Plots allocated direct to
PAPs.
Complains increased with
time. Mainly because of
family or relatives
conflicts.
6
Mwendakulima
Houses, Money &
Grain (Maize)
Cheque through bank
deposit. House/Building
constructed at such place
as suggested by PAPs
within the ward.
Less complains, bank
deposit not friendly to
most of PAPs. Had lots of
challenges because were
funded by African
Barrick.
7
Nyahanga
Money and Plots
Cheque through bank
deposit. Plots allocated
direct to PAPs.
Less complains, bank
deposit not friendly to
most of PAPs.
8
Nyasubi
Money and Plots
Cheque through bank
deposit. Plots allocated
direct to PAPs.
Less complains, bank
deposit not friendly to
most of PAPs.
9
Nyihogo
Plots Only
Plots allocated direct to
PAPs.
Complains increased with
time. Mainly because of
family or relatives
conflicts.
Source: Author’s Study Findings, 2021
4.3.4
Time Taken by KMC to Effect Payment of Compensation
The study has established that there was no specific timeline for payment of
compensation regardless of the existing mandatory guidelines. Accordingly,
33
responses indicates that there is no record of payment of interest for late payment of
compensation that had ever been executed by the authorities in Kahama Urban area.
Meanwhile, the position of the law governing payment of compensation requires that
payment be made promptly and any delay shall be subject to payment of interest for
late payment.39 However, in practice there has been a confusion on determination of
the date on which the basis of delay for payment of compensation can be computed.
Determination of delay – where to start? Is it after the approval date as per section
52(8) of the Valuation and Valuers (Registration) Act, No. 7 of 2016? or is it on the
date of service and publication of notice to yield possession as per section 8 and 14
(a) of the Land Acquisition Act, No. 47 of 196740?
Through review of literatures, this study has found that the Land Acquisition Act,
No.47 of 196741 is a superior legislation in all matters relating to land acquisition in
Tanzania (Kombe, 2010). Thus, the interest for delay of payment should be computed
from the date of service and publication of notice to yield possession which can
literally be regarded as the date of acquisition. The law provides further that the
interest rate should be six per centum (6%) per annum from the date when possession
is taken until such compensation is paid as per section 15 of Land Acquisition Act,
No. 47 of 1967.
Besides, opinion from respondents suggested that the interest rate on delay of
payment be based on market rate, not the statutory rate (the 6% as directed by the
Land Acquisition Act). This assertion is line with the position of section 52(5) of the
Valuation and Valuers (Registration) Act, which provide that an interest chargeable at
the average percentage rate of interest offered by commercial bank on fixed deposit
should be payable if the authority fails to effect prompt payment (within six months
after the approval of valuation report by the chief valuer).
Similarly, the responses indicate that most of the acquisition projects in KMC delayed
to effected payments of compensation as only one out of seven projects under review
ended up paying within six months as indicated in Table 4:5 below. The project in
which payment of compensation was within the limits of time (prompt) operated
39
40
41
The Land Act, No. 4 of 1999 [Cap 113, R.E.2019] & The Land Acquisition Act, No. 47 of 1967
[Cap 118, R.E.2019].
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019].
The Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019].
34
under the arrangement of Public Private Partnership (PPP) between the then Kahama
Town Council and UTT (Unit Trust of Tanzania).
Table 4:5 Showing the Time Taken by Authorities to Pay Compensation
S/N
TIME TAKEN TO PAY
WARD(S)
REMARK(S)
Project operated on
1
Prompt (within 6 months)
Nyahanga
PPP basis between the
then KTC & UTT
2
Between 6 month and 1 year
-
Budgetary issues
Mwendakulima, Mhungula,
3
Between 1 year and 3 years
Mhongolo, Malunga,
Nyihogo
4
Above 3 years
Busoka and Nyasubi
Budgetary issues, PAPs
complaints
Budgetary issues, PAPs
complaints
Source: Author’s Study Findings, 2021
4.3.5
Challenges Faced by Local Government Authorities in Land Acquisition
for Urban Expansion in Tanzania
The study has observed three main challenges that face most Local Government
Authorities in implementation of land acquisition projects for urban expansion in the
country: (i) Administration of land Acquisition Procedures
For proper administration of land acquisition projects, it requires that the relevant
authorities must have the competent and experienced officials who must always be
aware of the various mandatory provisions of governing legal instruments. The
common legal instruments that must be adhered to include: The constitution of the
United Republic of Tanzania of 1977, especially articles 24(1) and (2) for the
Protection of Right to Own Property (ies); The Land Acquisition Act, No. 47 of 1967,
[Cap 118, R.E. 2019] as the principle legislation in regard to land acquisition in the
country; The Land Act No. 4 of 1999, [Cap 113, R.E. 2019] and the Village Land
Act, No. 5 of 1999, [Cap 114, R.E. 2019]; The Urban Planning Act, No. 8 of 2007 as
the principal legislation guiding urban planning and development; The Graves
(Removal) Act, No. 9 of 1969 for the administration of the removal of graves from
land required for public purposes; and The Valuation and Valuers Registration Act,
35
No. 7 of 2016 as the principle legislation in regard to assessment of values of
compensable items.
Also, the Authorities must appreciate the mandatory requirement of servicing notices.
The challenge is that there is multiplicity of Statutory Notices; As planning
authorities, Local Government Authorities find it challenging to obtain various
mandatory notices from relevant authorities because there is no single and unified
framework that could enumerate all the notices required. A review of literatures
suggests that there four (4) notices which must be serviced to PAPs. They are the
notice to claim compensation which has to be issued by the commissioner or the
authorized officer. This notice has three function which include to notify the occupier
of the land subject to acquisition, to require the occupier to submit the claim for
compensation to the commissioner or the authorized officer, and to require the
occupier to appear physically on the land subject to acquisition on the date and time
on which the assessment shall be done.42 The two, other notices have to be issued by
the Minister responsible for land as provided under section 6 and 7 of the Land
acquisition Act. They are the Notice of intention to take lands and Notice or intention
to yield possession and power to take possession respectively. The fourth notice is the
notice of intention to remove grave(s) which must be issue by the minister and be
gazetted.
Besides, there is a challenge of gravel removal from land required for public purpose
whose administration involves the Graves (Removal) Act, No. 9 of 1969 as the
principal legislation alongside the Public Health Act, No. 1 of 2009. The Minister has
the mandate under the Gravel Removal Act, to issue a notice of intention to remove
that grave(s) which must be served to a person interested and/or to the religion
organisation for which the burial of members relates. The notice must be gazetted
after it has been served to all interested persons. The study found that KMC did not
require any notice before gravel was removed in all the acquisition projects under
review.
Besides, the procedure for administration of land acquisition may involve counter
claim by Local Government Authority due to increase in value of property after
implementation of the development scheme as per section 70 of the Urban Planning
42
Government Notice No. 79 published on 4/5/2001.
36
Act. This type of claim is referred to as the claim for betterment which entitle
payment of compensation for the Local government implementing a development
scheme shortly after three years of completion. This is not the same as the claim for
compensation of orphanage land which occurs when the remaining land is so small or
so badly shaped and is incapable of reasonable development as per section 61(1) of
Urban Planning Act.43 The issue of orphanage land is similar to the provision of
section 10(1) of the Land Acquisition Act by directing that if the remaining land
located outside the boundary of any city, municipality or township is less than half an
acre (literally half the size of the land) and is deemed as being inter-related land, the
occupier may insist on same being taken.44
On the other hand, malpractices of the officials and PAPs are a great challenge in
implementation of Land Acquisition for urban expansion. There is allegation of lack
of integrity particularly against the Valuers which are based on lack of transparency
in the process. The allegation is said to be exaggerated by community and nongovernment organizations which always appear to side with PAPs in the subject area
during and after the land acquisition process (Komu, 2014). Also, there are cases
where PAPs were found to plant crops and probably develop their lands by permanent
structures even if the order to stop any development has been issued. The motive
behind this is to inculcate the valuers to appraise the developments as part of
compensable items. The magnitude of this challenge remains unknown and there is a
need to designate a specific study as this is out of the scope of the study.
(ii) Administration of Payment of Compensation
In practice the procedures for payment of compensation due to compulsory land
acquisition are not harmonized. For example, the review of acquisition projects
implemented in Kahama Municipal Council reveals mixed approach. It is the KMC
which paid compensation through Bank checks and/or allocated plots to PAPs on its
own behalf as beneficiary of the land subject to acquisition. For the case of
Mwendakulima ward the payment was made through bank checks by Buzwagi Mines
for and on behalf of its own. This is against to the position of the law which requires
43
44
The Urban Planning Act, No. 8 of 2007.
See, Section 10 of the Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E. 2019].
37
that payment for the land acquired for public purpose must be made by the
government through the Land Compensation Fund provided under section 173 of the
Land Act.45
Evidence suggests that most of Local Government Authorities face the same
challenge as at the time of conducting this study, the government has not established
the Trustee to manage the Fund. The Fund is designed to provide compensation to
PAPs or any other person who suffers a loss or deprivation or diminution of any
rights or interests in land or any injurious affection in respect of any occupation of
land. The access to the Fund by Local Government Authority or any other
government organisation is through the commissioner for Land. The commissioner is
vested with powers to receive claims for compensation and submit together with the
compensation schedule to the Fund which has the right to accept or refuse to pay.46
It is even challenging for local government authorities when administering payment
for the removal of gravels from the land taken for public purpose. Thus, the Graves
(Removal) Act, provide for compensation in certain cases and the scope of
compensation payable is limited to the reasonable expenses incurred in the removal,
transportation, reinstatement and re-interment of the graves or dead body. The
absence of standardized/national framework for payment of compensation for the
removal of graves has led every Local Government Authority to administer the
procedures at its own conveniency. In practice, the removal of graves or other
traditional properties involves costs relating to all necessary ritual ceremonies during
implementation of land take. The issues are how much is payable for which activity?
(iii)Handling of Post Payment Claims
The four key steps involved in administration of land acquisition in Tanzania as
suggested by Kombe (2010) could not adequately address the challenges facing local
government authorities in absence of yet another necessary step of handling post
payment claims. Currently, local government authorities embark into handling post
payment claims through various option including the administrative review through
the office of the Chief Valuer, the Commissioner for Lands, the Minister for Lands,
45
46
The Land Act, No. 4 of 1999 [Cap 113, R.E. 2019].
Government Notice No. 79 published on 4/5/2001.
38
and even the President on basis of political platforms. The second is through
adjudication where the dissatisfied person(s) can institute a civil suit in the High
Court in respect of proceedings involving the Government, sec. 37(1)(c) of the Land
Dispute Courts Act.47
However, the law does not provide for time limit for lodging the complaints, but
some proceedings are subject to the Law of Limitations Act.48 Lack of a Framework
for handling post payment claims (disputes) provides room for elongated
consultations by NGO and social activists. Also, most of administrative actions
contravene legal provision and allows for overlapping and contradicting of decision
given by different institutions.
Accordingly, the survey for this study found 4 disputes relating to land acquisition
which were decided ex-parte by the Ward Tribunals in Kahama. The Malunga Ward
Tribunal decided 3 cases while the Mhongolo has 1 case. The cases involved the then
Kahama district council and Kahama Town Council between 2011 and 2016 as
respondents. Though, accurate data was not available in other tribunals to grade this
indicator, still this can describe that some members of ward tribunals in the country
could not appreciate the limits of their legal mandates. The power to adjudicate land
acquisition disputes in respect of proceedings involving the Government (local
government authority) is vested to the high court as its original court.
In contrast, a review of literatures provides that in 2016 compensation disputes
accounted for 19 percent of land-related disputes in Tanzania. There was an increase
of compensation cases from 11,000 per annum in 2011 to 43,000 in 2015 which
implies weakness in the procedures for administration of land acquisition in the
country (Komu, 2016).
The table below (Table 4:6) provides a general summary of disputes observed in
various land acquisition projects in Tanzania.
47
48
The Land Dispute Courts Act, No. 2 of 2002 [Cap 216, R.E. 2019].
The Law of Limitation Act, No. 10 of 1971 [Cap 89, R.E. 2019].
39
Table 4:6 Records and Reasons for Land Acquisition Disputes in Tanzania
S/N
Reasons
New
Urban Use
(2002)
Road
(2007)
Resettlement
Hosts (2010)
Rail Yard
(2011)
Wayleave
(Gas) 2013
1
Inadequate
3
53
7
156
75
2
Misidentification
54
121
2
33
345
3
Missed Out
21
5
4
78
125
4
Others/graves
24
23
0
21
67
5
Total
102
278
13
288
612
6
Total PAPs
1,090
1,898
105
2,889
3,178
7
(%) Complaints
9.36
14.6
12.4
9.97
19.3
Source: Komu, 201649
(iv) No Comprehensive Resettlement Policy,
The continued trendy of disagreements between the Government and PAPs during
implementation of land acquisition and after payments of compensation is evidence
that the procedures adopted by authorities lacks comprehensive policy.50 The policy
could help address both administrative and adjudicative requirements before, during
and after the implementation of land acquisition and the resulting relocation of PAPs.
Generally, for many years, practices in land acquisition have witnessed a mixture of
local and international guidelines especially those provided by national legal
instruments and the World Bank OP 04.12 Operational Manual on Involuntary
Resettlement. The position of the Land Acquisition Act does not recognise the
dominance of funding organisations guidelines which are everyday reality in
acquisition financed by the World Bank or other international financial organisations
(Komu, 2016).
49
50
Extracted from a paper presented by Dr. Felician Komu at FIG working week on 2-6 May, 2016.
Christchurch, New Zealand.
Komu, F. (2016); Compensation Assessment for Land Acquisition: The Dichotomy of National
Laws and Development Partners Resettlement Requirements. A paper presented at FIG working
week on 2-6 May, 2016. Christchurch, New Zealand.
40
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0
Introduction
This chapter presents a summary discussion of findings, a conclusion, and
recommendations based on the research objectives. Also, the chapter presents the
policy implication of the study and avenues for further research.
5.1
Summary of Findings
The study found that respondents were not aware that only the President of the United
Republic has the power to acquire any land for public purposes. At KMC projects for
land acquisitions, was implemented without observing the President’s power to
acquire land. There were no statutory notices either obtained to service to PAPs that
their lands are subject to acquisition for public purpose as mandated by the Land
Acquisition Act. The absence of statutory authorities and notices to service to PAPs
makes the entire land acquisition exercise unlawful.
The procedures adopted for payment of compensation did not comply with legal
requirements. The Land Acquisition Act, No. 47 of 1967 requires that the payment
should be made by the government and that the authority responsible for payment is
the Land Compensation Fund which is established under section 173 of the Land Act,
No. 4 of 1999. KMC as a Planning Authority is a mere beneficiary of land acquisition
and cannot exercise power to acquire land and pay compensation without having a
conflict of interest. Also, there was no timeline for executing the acquisition
assignment and payment of compensation. The absence of statutory notices makes it
challenging to ascertain the delay of payments.
Furthermore, the study found confusion between the cut-off date on which the
valuation assignment starts, the date of approval of the valuation report by the Chief
valuer, and the date of service and publication of notice to yield possession. The delay
is computed based on the date of service and publication of notice to yield possession.
It is on that date where the landholder is prohibited from developing any further
his/her land and cannot claim compensation for development made thereafter the
notice has been published. This can be referred to as the date of acquisition. There is
41
also confusion on what interest to pay for the delay of payment of compensation. The
position of the Land Acquisition Act, which is the superior statute in regard to land
acquisition and payment of compensation is that interest for late payment should be 6
per cent per annum. Any other rate payable as interest for delay of payment of
compensation is against the law.
The study observed further that there is no national framework for the administration
of land acquisition procedures. The absence of a national framework for the
administration of land acquisition makes it difficult for KMC and other Local
Government Authorities to effectively and efficiently implement land take in
Tanzania. The irregularities envisaged could make the entire process of land
acquisition myth and unlawful and could easily be questionable in courts of law.
Also, there are uncoordinated handling of post-payment claims. The claims relating to
land acquisition for public purposes are in practice been handled by different
authorities which makes it difficult for authorities to integrate and estimate the
magnitude of its severity. The requirement to institute legal action against the
government in regard to land acquisition and payment of compensation is that all
disputes must be instituted as a civil suit in the High Court as the original court. This
requirement is difficult to implement because most PAPs are even not aware of it and
the land acquisition project affects people in rural areas who cannot easily afford
representation to the High Court.
In nutshell, there is no comprehensive resettlement policy that could address and
facilitate the implementation of the Resettlement Action Plan (RAP) during
compulsory land acquisition. The government has been hesitant to have a national
resettlement policy despite most donor-funded projects which involve land
acquisition tend to observe the World Bank Operational Policy 04.12 on Involuntary
Resettlement alongside the local guidelines. The use of the two approaches tends to
contact each other as the practices are much more different in ascertaining the values
of compensable items.
5.2
Conclusion and Recommendations
This study has provided a discussion by examining the source, extent, and limits of
power of Local Government Authorities in exercising their duties as planning
42
authorities in urban areas. It focused on the way legal powers were exercised during
the implementation of land acquisition for urban expansion. The study further
examines the actual processes adopted by the Kahama Municipal Council to embark
on the challenges of urban agglomeration. Also, the study has dwelt into evaluating
the challenges faced by Local Government Authorities during the implementation of
land acquisition assignments for urban expansion in Tanzania.
It is evident, therefore, that land acquisition has become the most frustrating issue for
many landholders in peri-urban areas in Tanzania. This has resulted in constant and
perpetual protests and disgraces in almost all urban areas in the country. These claims
do not threaten Local Government Authorities in their attempt to plan for expanding
urban boundaries but also damage the social and economic progress of the country.
Many protests get the attention from even foreign entities, such as the World Bank
especially in those projects financed by the funds from the bank, the human rights
activists who dare even to join the protests through courts of law to protect the
interests of landholders, should the authorities fail to resolve the disagreements
amicably. The study, therefore, recommends that: -
5.2.1 Provide Public Education for Land Holders
The Ministry of Lands, Housing and Human Settlements Development should
provide education to the public in those areas where land is about to be acquired for
public purpose. The focus should be on the power of the President to acquire land and
what it takes to administer or implement compulsory land acquisition in Tanzania.
5.2.2 Obtain Statutory Authority and Service of Notice
The Minster for President's Office, Regional Administration and Local Government
(PO-RALG) through the office of Commissioner for Lands should work to ensure
that LGAs obtain all statutory authorities and necessary notices from the Minister for
Lands, Housing and Human Settlements Development. They also, must ensure that
statutory notices have been gazetted and must obtain and keep copies for their official
use.
43
5.2.3 Payment Should be Through the Compensation Fund
The Minsters for President's Office, Regional Administration and Local Government
(PO-RALG) and Lands, Housing and Human Settlements Development should ensure
that all payments of compensation are made through the Land Compensation Fund.
As at the time of this study, there is yet to be established the Trustee to manage the
Fund, the Minster Lands, Housing and Human Settlements Development should
establish the Fund as directed by section 173 of the Land Act, No. 4 of 1999 [Cap
113, R.E. 2019]. Payment which does not comply with the law might attract
mismanagement of funds payable as compensation and give rise to disputes which
would otherwise be avoidable.
5.2.4 Ensure Prompt Payment of Compensation
The Minister for Lands, Housing and Human Settlements Development is vested with
power to pay compensation on behalf of government under section 11 of the Land
Acquisition Act, No 47 of 1967 [Cap 118, R.E. 2019]. The authorities (including the
Fund) should exercise payment of compensation within six months from the date of
acquisition (the date of servicing the notice of intention to yield possession and power
to take possession). Any delay in payment of compensation, an interest for late
payment should be imposed and payable at 6 percent per annum as mandated by
section 15 of the Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019].
The Minister should also provide for reforms of statutes to harmonize the
contradiction that exist between the Valuation and Valuers (registration) Act, No. 7 of
2016 and the Land Acquisition Act, No. 47 of 1967 [Cap 118, R.E.2019] on the issue
of delay and the rate payable as interest on late payment of compensation. The
Valuation Act, provides that the rate shall be computed at the average of interest rate
of commercial banks payable on fixed deposit. This provision is inconsistent to the
Land Acquisition Act, which provide a statutory rate of just 6 percent per annum. The
same for timeline used to compute the delay; the study find it that computing based
on the date of approval is inappropriate because the PAPs are denied the right to
develop since publication of notice to yield and power to take possession which is far
earlier than the date of approval of valuation.
44
5.2.5 Provide for Comprehensive National Framework for Administration of
Land Acquisition
Minister for Lands, Housing and Human Settlements Development should ensure that
the government has a Comprehensive National Framework for the Administration of
Land Acquisition. The framework should be used by authorities involved in
administration of land acquisition assignment. The presence of the framework will
help LGAs and other government organisation to have common standard of practices
and the procedures could be measurable.
5.2.6 Coordinate the Handling of Post-payment Claims
The Minister for Lands, Housing and Human Settlements Development should
reform the procedures for handling post-payment claims by introducing a land
adjudication committee which should be part of mandatory institutions in the
administration of land acquisition. The functions of the committee should be provided
clearly in the Comprehensive National Framework for administration of Land
acquisition in the country.
5.2.7 Provide for Comprehensive Resettlement Policy
To ensure the country has a comprehensive resettlement policy, the Minister for
Lands, Housing and Human Settlements Development should work to facilitate its
preparation and adoption. The policy could help address and facilitate implementation
of Resettlement Action Plan (RAP) during compulsory land acquisition. The adoption
of the comprehensive resettlement policy should be legally binding and its proper
usage could help resolve the ambiguity that occurs when two approaches (local and
international guideline) are deployed over the same project. Its adoption could easy
the practices and help avoid the differences especially that exists on ascertaining the
values of compensable items. Hence, the use of World Bank Operational Policy 04.12
on Involuntary Resettlement alongside the national guidelines could be dependable to
the country’s statutes.
45
5.4 Policy Implications
The main aim of this study was to examine by reviewing the level of compliance of
the existing practices of local government authorities against policy and statutes used
in the implementation of land acquisition for urban expansion in Tanzania. The
researcher perceives that the objective has been accomplished throughout the research
work presented in this report-book. The findings of the study deliver to the audience
the implications for both policy and practical attention especially on the need for
having a comprehensive national framework for land acquisition which will be used
as a national guideline to regulate practices of various statutory authorities involved
in implementation of land acquisition in the country. Also, the need for a
comprehensive resettlement policy to harmonize the local practices to international
guidelines.
Therefore, the study on practices of local government authorities in their attempt to
obtain land for urban expansion helps inform policy makers of the need for
comprehensive policy to regulate the practices and procedures which must be
accomplished by various stakeholders involved in land acquisition for urban
expansion. The knowledge developed through findings and recommendations
identified thereto, should serve to advance a mutual understanding of the key
procedures, policy gaps and institutional roles to ensure a wide-ranging working
relationship between the land holders and the government at large.
5.5 Area of Further Study
This study, being descriptive in nature, raises a number of opportunities for future
research, both in terms of theory development and concept validation. More research
will in fact be necessary to refine and further elaborate the unique findings. While the
study has generated a number of useful findings that helps understand the practices of
local government authorities against policy and statutes used in the implementation of
land acquisition for urban expansion in Tanzania.
Also, scanty information has been developed on areas of economic impacts of the
larger population of PAPs after receiving compensation and the challenge of
malpractices of both the officials and PAPs during implementation of land acquisition
projects in Tanzania. The study could therefore be extended in those areas to help
46
further develop new knowledge and offer the opportunity to improve and authenticate
the concepts and constructs that appeared from the analysis made in this study.
47
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50
APPENDICES
INDEX OF SURVEY QUESTIONS
Dear respondent!
This questionnaire is being administered to fulfil requirements of a thesis as
mandatory requirement for Full Registered Valuers in Tanzania. Your responses will
be treated with strict confidentiality and will be solely for undertaking research
objectives.
A: Questionnaire: For PAPs, WARD and MTAA Leaders Involved in Acquisition
Projects. Policy, legislations and institutional issues.
Qn1: Are you aware of any specific provisions of the laws, policies or regulations
that provides for land acquisition for public use in the country?
Qn2: Was the Ward institution involved during field inspection and data collection of
properties of the residents for compensation purposes?
Qn3: If yes, how was it involved (give a step-by-step description of how you were
involved in the undertaking of the valuation exercise).
Qn4: Mention any other institution(s) and their respective actors involved in the
process of undertaking valuation exercise for the affected people.
Qn5: If there were other institutions involved, what specific roles/activities they
undertook?
B: Questionnaire: For Local Government Authorities and Professionals involved in
acquisition projects Project implementation, assessment and
payment of compensation and relocation of PAPs.
Qn6: Did you participate in any compulsory land acquisition project?
Qn7: Did the KMC obtain Government Notice in any compulsory acquisition you
were involved?
Qn8: Were all the people/households affected by implementation of the project
compensated?
Qn9: If they were compensated, what actually was compensated?
Qn10: What mode of payment was used to pay the affected residents?
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Qn11: In addition to monetary compensation what other forms of compensation
packages were given/paid? (Mention two).
Qn12: Were there any delay because of bureaucracies that shrouded payment of
compensation? If yes, how were the bureaucracies overcome?
Qn13: How long did it take before payment was affected? (Tick appropriate)
a) Between 6 months to one year
b) Between one year and three years
c) Above three years
Qn14: Were there any incidences where people gave up following their
compensation funds because of delayed payment?
Qn15: During compensation process, were there any people who given alternative
plots within the Ward in addition to monetary compensation?
Qn16: In the course of implementation of the scheme, were there people who got
relocated outside the Ward?
Qn17: During the land acquisition process in any ward, were the vulnerable groups
(orphans, women, disabled) given any special consideration?
C: Questionnaire: General questions (Targeted group) Policy, legislations and
institutional issues
Qn18: What do you understand by compulsory land acquisition?
Qn19: Who has the power to acquire land in Tanzania? (Tick appropriate)
a) Director of the Local Government Authority
b) The Minister responsible for lands
c) The president of United Republic of Tanzania
d) Regional and District commissioners
Qn20: What can be the reason for abuses of the power to compulsory acquire any
land in Tanzania? (Tick appropriate)
a) Delay of compensation payment
b) Unfair procedures and failure to adhere to policies and legal provisions
c) Clever Valuers and Land officers
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D: Interview Questions: For
Seasoned
Valuers
and
Valuation
firms
with
experience in acquisition projects. Weaknesses, challenges
and the way forward.
Qn21: What are the common weaknesses and/or strengths in policies, laws and
regulations governing the undertaking of compulsory land acquisition, assessment
and payment of compensation by local government in Tanzania?
Qn22: What are the common weaknesses and/or strengths in the practice of
undertaking of compulsory land acquisition, assessment and payment of
compensation by local government in Tanzania?
Qn23: What should be done in the future in order to ensure that compulsory land
acquisition for public use does not violet available policies and legislation in
Tanzania?
Thanks for your valuable time!
*********