SECURITY OF TENURE
This paper is going to discuss about Security of Tenure, starting with a short Historical back ground and then definition /literature review and then the policies and conclusion. Expansion of the informal settlements has been a major concern for the governments and local authorities in the region. Many countries are in efforts to upgrade and regularize these informal settlements and promote security of tenure to millions of people. Such effort included recognizing full ownership right as well as putting into place flexible land tenure arrangements, such as facilitating users’ right (for instance Namibia has developed a flexible tenure system to run parallel to the formal system). There is concern understanding that security of tenure can be promoted also by addressing issues such as access to basic services, credit, employment generation and by assisting people in their own housing initiatives. Addressing gender inequalities in ownership and inheritance rights is deemed as one of the most fundamental steps in this regard. Efforts in Botiama to increase house owner ship by female – headed households are a good example for such approaches.
Several countries in the region are in the process of in alimenting informal settlement programmes. However, only few countries have reported that they have implemented projects which combine upgrading of informal settlements with the provision of security of tenure. This may be due to the fact that implementation of land regularization programmes are often confronted with difficulties, some of the due to the customary land tenure system found in many countries. Furthermore, the machinery needed to affect massive land registration/regularization programmes requires strong administrative control that may be largely missing. I addition, there are several other difficulties in promoting secure tenure that must be confroted.
What is Secure Tenure
Land tenure security is the situation in which landholders consider their continued occupancy rights to be guaranteed whether by virtue of formal rights, customary rules or some other form of assurance. Roth and Hazell suggested that there are three components of security. These are: -
Breadth, which considers what rights are held (use, transfer, exclusion.
Duration, which refers to the length of time during which the rights are valid and
Assurance, which concern the certainly of the rights.
While (1959) defined land tenure as “the right of individuals or groups over arable, grazing and residential land, how such rights are acquired, what the consist of, how they operate in the holding, transfer and in heritance of land and how they may be extinguished”
“a person or household can be said to have secure tenure when they are promoted from involuntary removal from their land or residence except in exceptional circumstances, and then only by mans of a known and agreed legal procedure, which ,must itself be objective, equally applicable, contestable and independent (Global Campaign for secure Tenure, Implementing the Habitat Agenda: Adequate shelter for all).
Evolution of Land Tenure in Tanzania before Tanzania was colonized by the German and then the British, the general structure of land holdings was based on traditional law and culture of each respective tribe in an area. The individual as a member of a family, clan or tribe acquired rights of use in the arable land he and his family could clear, activate and manage. However, when the land showed signs of exhaustion, then shifting cultivation was practiced.
In many of these areas, there was and there is still communal land for grazing and forest lands for cutting firewood. This type of extensive cultivation was acceptable and viable under conditions of low population densities, abundance of land and substance agriculture.
Initially each tribe had chiefs and elders or Headmen who controlled and allowed land to individuals (i.e members of that tribe) on behalf of the tribe in a fiduciary capacity. This system was continued ever during German and British colonial rule of Tanzania. However, following the abolition of chieftaincy by the African Chiefs Ordinance Act. No. 13 of 1963 (cap. 51) after Tanzania obtained independence in 1961, the controlling was rendered obsolete. When land was held under family tenure, each member of land heard of that family had a definite shave of that property. Each member could not dispose part of his shave without either getting the consent of other family members and a right of preemption to other heirs. Similarly where land was held in a clan, the owner could not dispose of it to a non clan member without first getting the permission of the clan elders.
The introduction and promotion of plantation agriculture under German administration introduced different land tenure system in the country where by land mainly prime agricultural land was allocated in freeholds, mostly to settlers. Alienation of land, save that which was in private ownership or possessed by chiefs or indigenous communities, was facilities by the passing of the Imperial Decree “Regarding Creation.
Acquisition and conveyance of Crown Land in 1895 which dectaved all land as Grown Land in the German Empire. This was indeed the beginning of nationalization of land. Transfer of crown land could only be affected through the governor either by conveyance of ownership or lease. In order to protect the land rights of natives, although in practice it failed to stop land grabbing, the Degree stated that transfer of ownership or lease of township land, by natives to non-natives for a period exceeding fifteen years, could not take place without the consent of the governor.
Under the British Administration, the system of land holding continued to change. Following the enactment of the land Tenure Ordinance Number 3 of 1923. The ordinance introduced the concept of “right of occupancy” in the country.
Under this new land tenure system rights over or in land were placed under the control of the Governor to be held, used or disposed of as rights of occupancy for the benefit of the indigenous people of Tanzania. In an attempt to protect native rights in land in native community lawful using or occupying land in accordance with customary law”
In 1961 free hold Titles were converted into lease holds under the free hold Titles (conversion) and Government lease Act (Cap. 523) of 1963 and were later changed into rights of occupancy under the Government lease holds Act. No. 44.
Land use in rural Africa, which refers to the refers to the usage under which any given piece of land may be put for a given period of times under prevailing environment and technology conditions, has under gone an evolutionary transformation, from the simple hunting and gathering to the more complex sedentary or permanent and commercial cultivation system.
In Tanzania land is a major and basic resources on which the bulk of the population especially rural women depend as the sole, livelihood and source of income.
Tanzania has different land tenure system covering clan, village land and public and urban land. The land tenure system has undergone changes since colonial times, the most profound of which included the declaration that all land is to be publicly owned by the head of state in trust for the whole nation with different legal regimes applying to rural and urban areas.
In 1991, a presidential commission on land Matters was appointed to study report on the land problem. Following the submissions report and recommendation well know as Shivji Report, the Ministry of Land and Human Settlements Development prepared a National Land Policy in June, 1995. On the basis of the policy a team of consultants drafted the Land Bill which was later passed as two separate Acts, the land Act and Village Land Act. No. 4 and 5 of 1999.
The presidential Commission Report Generated a vigorous debate over land and gender issue. They included the proper balance among security of tenure through tithing to attract foreign investment, protection of rural communities from land less ness and equitable, gender – sensitive allocation and management of land.
The commission pointed out that there was an absence of coherent land policy, unequal access to land, unstable policies and legislation, arbitrary decision and uncertain land rights.
The National Land Policy
The National Land Policy sought to promote equitable distribution of and access to land by all citizens. It’s major thrust was to be the conversion of land into an economic asset to which all citizens should have equal access to. The policy also sought to recognize, clarity and secure in law the existing right in land especially customary rights of small holders.
The ministry of Land and Human Settlements Development held several workshop to discuss the policy document with various stakeholders. Finally the policy declared on several issues amongst which are the following : -
(i) Access to land, that all citizens shall have equal and equitable access to land.
(ii) Women access to land, that, “In order to enhance and guarantee women’s access to land and security of tenure, women will be entitled to acquire land in their own right not only through purchase but also through allocation.
(iii) Disposition, that Regulation will be drafted to protect risk groups such as displaced persons, children and lower income people.
(iv) Land Registration, that land Registry offices will be gradually decentralized.
(v) Implementation, that apart from: - Ministries public institution and private institutions whose functions are associated with land development, local authorities, Non-government and community based development etc will be encouraged to participate in effective utilization of land.
The New Land Laws.
As it was in the formulation of National Land Policy, stockholders participated in a National Workshop to discuss Draft Land Law and they went further even to make presentations to Parliamentary Hearings when the Land Bills were debated. The key issues in debating and passing the two new land laws in 1998-99 were that discriminatory customary laws should be explicitly illegal and that administration organs with equal female representation.
Since land is one of the four pillars of Tanzania’s development philosophy which are people, land, good policies and good leadership, concerted implementation of the above policy statement will promote the best use of land so that land as an investment resources can make the maximum contribution to the country’s development process.
Implementation of the policy will help ensure that land is held and used effectively and efficiently and not boarded for speculative motives.
Likewise by creating efficient institutional frame work or structure for land administration which is also transparent, this policy should help streamline and simplify the procedures for getting land rather than make them cumbersome as they are at present thus reduce public complaints on land administration.
Forth, Tanzanians sound land tenure system has played a big role in promoting peace and national unity which are essential to development. Therefore, implementation of this policy which has retained the positive virtues of the existing land tenure system will further enhance peace and national unity
Also, by ensuring and promoting an equitable distribution of and access to land by all citizens, this policy and its accompanying legislation and implementation strategies to be formulated, will play a big role in shaping the type and nature of the Tanzania society this country wants to build in future. Tanzania is a country made up largely of small peasants, pastoralists and a few big farmers. Concerted implementation of this policy will make sure that the numerous small peasants and pastoralists who constitute the majority of the country is population are not made landless.
Women in the villages can now own land in their own right or jointly with men regardless of customary and religious restrictions. This gives them a stake in the development of their own village and enhancing their role as major producers on the land. Also customary systems of land management which is discriminative will therefore gradually be replaced with more secure individual tenure which provides incentives for agricultural investment and increase output.
Land can be used a collateral for Commercial Bank lending and mortgage transactions. There fore land Title deeds registered under women’s personal names will constitute a guarantee for women’s equal access to secure loan and credit.
The new land laws provide for decentralization of land services to order levels in local government authorities and village councils which in dudes allocation, adjudication and registration of land titles.
Women’s effectives participation in land matters have been entrenched in the new land laws. Women shall be members in Land Allocation Committees and in the National Land Advisory Council.
There is adequate participation of the people in dispute settlement. The New Land Laws provide for new dispute settlement machinery which has been affected though not yet in operation, by The Land Disputes Courts Act No. 2, 2002. Dispute Settlement Tribunals under this new law shall have seven assessors, three of whom, shall be women.
The New Law required Public awareness and education. Therefore Ministry of Land and Human Settlements Development in collaboration with Local Government Authorities is conducting education campaign to sensitize the public to the provision of the new land Acts regarding legal and physical access to land. This is being done through radio, newspaper, television etc.
The land administration system is presently creating awareness among the officials that women are disadvantage in a non-acceptable manner and that their situation can be strengthened through registered rights. The legal system give both men and women equal rights to land and demands on mutual consents of the parties for a transaction of the property to a third party. Otherwise the administrative procedures, under the new land Laws are simple and transparent therefore they allow the involvement of women in land administration processes. For example, out of 71 employees in the department of lands development, 34 are women.
Generally the equality arguments for women rights to land, concerns women’s position relative to men, that is, they hinge on gender relations and the ability of women to confront male oppression with the home and in society. This puts women’s in very difficult positions of whether to pursue equal right to land, get divorce or leave the family of the husband where the husband passes away.
However, in Tanzania women’s rights to land is gaining social legitimacy as a result of struggle by individual women and by women’s groups, therefore, they are not ready, even under pressure of relative, to give up their claim for example, to an inherited piece of land after death of a husband.
WOMEN ACCESS TO LAND IN THE CONTEXT OF POVERTY REDUCTION AND THE AIDS PANDEMIC.
Women comprise 51% of the country’s total population, head 14% of the households and also comprise 54% of the economically active population in rural areas. Despite this fact almost 60% of the rural population is poor compared to 39% of the urban population which means that women’s are proper than men. The major cause of this problems is women’s vulnerability and lack of land ownership. Therefore, by enabling women to own and control land they cultivate, women will be able to raise the productivity of land by investing in technological improvement and control the products of the land.
Women landlessness is also the reason for their inability to escape abuse or oppression relationship. However the ownership of a resources such as land increases the bargaining power of women and increases their ability within the household and society in general. Therefore, with effective rights to land, Tanzania women will be in a position to provide for their own needs as well as of house of their families, which are major contributing factors in the AIDS pandemic.
Security of tenure is one of the most important catalyst in stabilizing communities, improving shelter conditions, reducing social exclusion and improving access urban services (UNCHS, 1999).
When a person has got a title deed can be able to use the land for mortgage when they need a loan to invest into some business, increase investment in land based assets, mobilize credit facilities and activate land markets, in the hopes of encouraging agricultural development and growth. The land right can offer real security for landholders, potential investors and credit suppliers. However, more recent analyses confirm that many indigenous tenure systems do in fact confer secure rights of tenure to landholders, which are sufficient to stimulate investment and longer term land improvements.
Security of tenure reduces social exclusion as women were excluded to own land; but according to the new land; and thus be in included.
When people owns land with a title deed, they plots are always surveyed and thus it is easy for the government to provide some sevices.
1. Mrs. Mlole Bahati, Land Policy Challenges for policy makers Tanzania experience Ministry of Land ad Human Settlements Development.
2. Regional Africa Ministerial Conference on the implementation of the Habitat Agenda (Instanbul + 5) (200); Review of the Implementation of the Habitat Agenda in Africa; Addis Ababa, Ethiopia.
3. Kajoba Gear M. ( ) land use and land Tenure in Africa; towards an evolutionary conceptual frame work, Zambia.
4. Lamba Antony 0(2005) Land Tenure Management system in informal settlements, A case study in Nairobi.