Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

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scheme. The 250 hectares were divided into 27 farms of about 9 hectares each. The farmers were selected from good farmers from all over Swaziland. Each was given a lease, has access to an equipment pool, and could borrow from the scheme. Harvesting was done cooperatively, with required marketing through the scheme. The farmers borrowed heavily and accumulated great debts, requiring a government backout scheme. In 1981, government witndrew from the scheme, liquidating the PAC and leaving management of the scheme in the hands of a farmers' association. The association markets, and has had access to input credit, througn Swazican, the canning firm.

The original plan for the scheme was that scheme members were to purchase their plots after twelve years. This has not materialized, although twelve of the farmers have met the conditions for purchase. The Ministry has been reluc- tant to go ahead with the sale, though at the time of the study the purchases were said to be going through. If so, it will be the only instance where repurchased SNL has been resold to private owners, and seems to run contrary to policy in other, similar situations.

The case of Vuvulane Irrigated Farms (VIF) is also innovative. Though it was initiated on freehold land, it later became SNL. VIF was established on freehold by the Commonwealth Development Corporation (CDC) in 1962. By 1973, 223 Swazi farmers had leased holdings averaging 4.5 hectares, and by 1982

there were 263 farms with farm sizes between 3.2 and 6.5 hectares. The leases require farmers to devote 70 percent of their land to sugar, which is processed and marketed by the scheme. The terms of the lease were a major point of con- tention. The early leases were indefinite in duration. The issues of inheri-

renegotiable after ten years. The leases placed important restrictions on land use and left the corporation to name a successor on death of the tenant, subject to compensation to the tenant's family for approved improvements to the holding. In 1982, CDC handed legal title for the land over to the Swaziland National Agricultural Development Corporation (SNADC). The land became SNL and was leased to the farmers on a twenty-year renewable and inheritable basis. In a situation of declining earnings from sugar, the tenants have challenged the appropriateness of their being required to pay rent on SNL. Growing dis- satisfaction led to the appointment of a Commission of Inquiry in 1985. Although its work has been completed, its recommendations have not been made public. In 1986, ownership was transferred to Tibiyo. This failed to bring calm, as fourteen tenants were evicted for rent default. Their appeals to the king, however, resulted in their reinstatement in the scheme.

On SNL where customary tenure patterns have been well developed, innovation has taken the form of seeking models of agricultural development consistent with the customary tenure patterns. Mayiwane Maize is a Taiwan-supported MOAC project. The land utilized comes from existing homestead allocations, with members selected by Rural Development Area (RDA) management and staff on the basis of previous performance. Membership is on an individual basis, so women can join, and, in fact, a majority of the twenty-nine members are women. Each member commits 1 hectare to the project, and more than one member from a household may join if there is another hectare to commit. They continue to farm

successor to the hectare. The scheme is demonstrating high productivity on SNL. Although a number of chiefs' areas are involved, there have been no

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difficulties. The 1-hectare participation level may be less threatening than experiments creating larger-scale operations.

The Fuyani Poultry Cooperative is again on SNL under customary tenure. The site was allocated by a chief, who selected an open, unoccupied piece of land previously allocated as grazing land and allocated those who had formerly grazed on this land another piece of land. Membership is open to anyone local, even those from nearby chiefdoms, involves a joining fee, and is managed by an elected committee. Almost all the members are women. The poultry farm is managed cooperatively. Its experience with outsider membership has been smooth and suggests that this may be problematic. only when land under a project is allocated to individual outsiders.

The Magwanyane Sugar Project, again on customary SNL, owes its existence to local initiatives but received very substantial assistance from MOAC. MOAC officials helped the community plan the project, organize an association, arrange a loan for pump and pipes, and construct a storage reservoir. The chief allocated a 40-hectare area to the committee, joining himself and, when the land was allocated to members, received a plot. Some of the land had been used as pasture while some parts of it had been farmed. Some of those who farmed there joined the scheme. The scheme has grown and now has thirty-five members and 100 hectares, a 54-hectare sugarcane block, and individual holdings for vegetable production. Membership is individual, with husbands and wives counted as separate members. While part-time farmers are not allowed, hiring labor is permitted. There is some absenteeism; although the chief is an absentee, he maintains an active role, settling all major decisions of the scheme's governing committee.

Finally, there is the outgrower-contract farming model. It resembles the Mayiwane Maize Scheme model, except that it is operated by a private firm. The Cassallee Tobacco Project is an example. It was piloted through leasing 120 hectares of repurchased ITL from Tibiyo and Tisuka but now purchases primarily from SNL farmers. Levin notes that where a processing element is involved in the operation, the processing operation may need to be based on ITL or repurchased ITL leased to the operator. He also notes that even with this cash crop, successful outgrowers are quite limited in their ability to improve their incomes because they have difficulty expanding their scale of production.

The same LTC research program produced a more narrowly focused examination of tenure arrangements in smallholder irrigation on SNL:

SW6 de Vletter, Fion. Innovation and Adaptation: A Study of Land Tenure and Smallholder Irrigation Schemes in Swaziland. Mbabane: Ministry of Agriculture and Cooperatives, 1988.

The de Vletter study, an examination of twenty-five smallholder irrigation schemes, found that in virtually all schemes a management committee had been given autonomous powers to deal with the day-to-day running of the schemes. Chiefs were members of seven of the schemes, but not one committee included a chief. Chiefs have, nonetheless, played an important role. The chief's approval

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obtaining official clearance, water rights, and so forth. After the scheme was set up, chiefs generally pursued a laissez-faire policy, with the committee left to act on mundane misdemeanors. Committees organize work groups, absence from which results in fines; maintain bank accounts; borrow money; and tend to turn to the chief in only one difficult situation--eviction.

The Tate and Lyle report* had been concerned that eviction from schemes within the traditional tenure framework would be difficult. In fact, sixteen of the schemes had made provision for eviction. While it was clearly difficult to move beyond fines as a disciplinary tool, five schemes had, in fact, evicted members, in two cases for leaving the land uncultivated, and in one case for refusing to participate in work on channels. It is clear that access to land in the schemes is not viewed as entirely a matter of customary tenure, and that it is accepted that somewhat different rules apply. There is some ambiguity as to whether, on the irrigator's death, the plot is regarded as part of his estate or belonging to the scheme. The future use of the plot tends to be settled by the family in discussions with the management committee. Only the Zakhe scheme has a predominance of second-generation members, and most successors are eldest sons, though often the plot is farmed for a long period by the deceased's wife.

Flexibility in membership--and thus access to land--was a striking feature of some of the schemes. In government-initiated schemes, membership has tended to be on a first-come, first-served basis; in others, allocation has been by the chief. While in a majority of cases membership is by homestead or house-hold, in some cases there was membership by individuals and, in these cases, instances of women and bachelor members were found. Even outsiders to the community were admitted in some cases. Women in particular had more formal involvement than anticipated. In fifteen schemes, there were women members (some widows who had succeeded to their husbands' memberships) and two were composed entirely of women. Of the twenty-two operational schemes, nineteen had women sitting on their committees, with a ratio of women to men of 1:3 or 1:2. Where allocations were made to homesteads, wives were often elected as committee members despite the presence of male household heads. These latter were often preoccupied with rain-fed crops such as cotton in the lowveld, while wives concentrated on production of vegetables.

De Vletter also found the schemes to be more effective producers than anticipated. Earlier studies had indicated that only 50 percent of the land was in use in such schemes. De Vletter found only six schemes with significant amounts of land unused, and ten schemes had provision for the lending of plots among members to ensure they were kept in use. De Vletter concludes that these smallholder schemes have a good deal to offer and are a viable alternative to larger-scale operations on the Vuvulane model.

Two problems do emerge from his study, however. First, the issue of in- clusion of outsiders in a scheme seems particularly controversial, likely to engender disputes and likely to be ultimately resolved against outsider par- ticipation. Second, it became clear that when a serious dispute did arise, one serious enough that it could not be settled by the chief, it was not dealt with effectively by higher authorities. The case of "schemes that did fail,

* Tate and Lyle Technical Services, "Reconnaissance Study, Usutu and Ngwavuma River Basins," Land Tenure Technical Report no. 5 (London: WLPU Consultdnts, 1982).

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or became temporarily inactive pending decisions, are the result of involvement of higher authorities who are forced to grapple with issues for which there are no obvious solutions in customary law and practice."

De Vletter identifies several needs: (1) a need for all schemes to have written constitutions which set out rights and obligations clearly; (2) a need to affirm that access to a scheme plot is not a right but a privilege, condi- tioned upon fulfillment of certain obligations and subject to withdrawal if those obligations are not met; (3) a need to affirm a policy of openness on such schemes to groups disadvantaged in access to land under the customary tenure system--women, in their own right, .unmarried men, and some outsiders, especially those with training in agriculture such as graduates of the School of Appropriate Farming Technology; and (4) a need to have clear policies promoting schemes of this nature and the means for prompt and sustaining settlement by higher authorities of such disputes as do arise.

Most of the tenure change on SNL has been either through an evo- lutionary process or on local initiative. There has been no stateenacted tenure reform, and, in fact, few proposals for such reform. One exception is:

SW7 Maina, M., and G.G. Strieker. "Customary Land Tenure and

Modern Agriculture on Swazi Nation Land: A Programme of Partnership." Mbabane: Ministry of Agriculture and Cooperatives, 1971.

The authors state that the customary tenure system is the "principal reason for the disaffection of young Swazis from the rural areas," but argue that a freehold system would run contrary to Swazi cultural values and result in land concentration and landlessness. They propose a systematic adjudication, demarcation, and registration of land rights in each chief's area, with those farmers who requested leasehold being given it at that time. The leases would be for between 5U and 100 years, have modest rents based on unimproved value, allow a successor to be nominated, and have limits on subdivision. The leases would be administered by a National Leaseholo Authority, which would use local chiefs as its agents--though the exact relationship is not clear in the proposal. A leasehold credit scheme is proposed in which the National Leasehold Authority would guarantee bank loans to leaseholders. If the lease-holder defaulted and the Authority had to pay, the Authority would then recover the debt from the leaseholder (it is not clear how) and would have the right to cancel the lease in the event of a "serious default."

A similar proposal is put forward in Magagula:

SW8 Magagula, G.T. "Land Tenure and Agriculutral Production in Swaziland." In Land Policy and Agriculture in Eastern and Southern Africa, edited by L.D. Ngcongco and S.D. Turner, pp. 133-140. Tokyo: United Nations University, 1986.

239 TANZANIA

The literature on land registration in Tanzania, despite the im- plementation of several different programs, is sparse and unfocused. A system of land registration was established by both the German and British colonial regimes, but has been discussed only in the context of land tenure policy in general. The paucity of data is even more evident in the post-Arusha period (1967+), with government policy focusing on the implementation of the ujamaa program and on the dismantling of the system of freehold land titles. There is an abundance of literature discussing land issues in light of the so- cialization programs since 1967;* however, few of these papers spe- cifically address the issues of farmer security of tenure or titling.

Individual land registration, as mentioned above, was introduced in Tanzania during the colonial period and was a feature of both the German and British administrations. The best overall description and evaluation of the colonial system can be found in the following:

TA1 James, R.W. Land Tenure Policy in Tanzania. Nairobi: East African Literature Bureau, 1971.

James's monograph covers both the German and British colonial systems as well as the independence period up to 1970 and provides a valuable overview of trends in land policy up through the first years of ujamaa. An expert in land policy and land law, James provides a thoughtful consideration of land legislation and programs for all three periods.

In the years of the German occupation, from roughly 1890 through 1917, government policy was to encourage European settlement and the development of plantation agriculture. To this end, the Imperial Ordinance of 1895 was enacted which facilitated the acquisition and registration of large tracts of land as freehold. All land except that which was already privately owned or possessed by chiefs or other Africans was declared Crown land. Individuals might prove their claims to this land by providing "authentic documents."

Thus, James writes, "the result was that in law, only settlers who could prove grants of land from the German administration, whose grants were entered in one of the German registers, or those who had documentary evidence of grants

* For a comprehensive review from different theoretical perspectives, see Dean E. McHenry, "Peasant Participation in Communal Farming: The Tanzanian Experience," African Studies Review 20 (1977) : 43-63; Susanne D. Mueller, "landing the Middle Peasantry: Narodism in Tanzania," Working Papers no. 20 (Boston: African Studies Center, Boston University, 1979) ; and Goran Hyden, Beyond Ujamaa in Tanzania; Underdevelopment and an Uncaptured Peasantry (Los Angeles: University of California Press, 1980)

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from local chiefs or a public authority, had security of tenure" (p. 14). These grants were made according to German law, with most deeds issued originally as leaseholds with the option to purchase, the purpose being to prevent land speculation while encouraging land utilization. By the end of the German occupation, approximately 1.3 million acres of land had been alienated in freehold to settlers, most of it located in the northern highlands areas of the

the German defeat in World War I. English land law was introduced into the country, and German titles were recognized and converted into fee-simple. Under the British, few new grants of land were made, and by the end of the colonial period the amount of alienated land was 2,500,000 A., or roughly 1 percent of the total land area (freehold plus leasehold?). As in the German period, it was in the areas of high agricultural potential that registered land was likely to be found and almost invariably held by Europeans and other foreigners. [Larsson (see TA2, below) writes that during the British occupation, only one freehold grant was made, and that it was eventually turned over to government control.] James notes that the British made special arrangements under the Land Registration Ordinance for land designated as wagf land under Muslim law; this land was deemed freehold upon registration.

At independence the new government gave careful consideration to land policy and to the role that registered land should or should not play in Tanzania's development. Although the common wisdom at the time emphasized the necessity of individualization of title for agricultural development, the government chose to emphasize issues of social justice and common rights to land. As one of the first pieces of legislation after independence, the Freehold (Conversion and Government Leases) Act of 1963 was enacted, which, as the title implies, provided for the conversion of freehold titles into 99-year, renewable government leases carrying only a nominal rent. (This act was later in effect repealed by the Government Leaseholds (Conversion of Rights of Occupancy) Act of 1969, which converted the leaseholds to rights of occupancy in order to bring them into line with property rights held by occupants of what had originally been Public Land.) The 1963 Act established several important tenets of land policy in independent Tanzania: that land belongs to the society rather than to individuals; that the right to land depends on actual use of it; and that land is not a commercial commodity. The Arusha Declaration in 1967 and

translated as cooperation of the sort found in traditional extended families) to guide Tanzania's future course of development. The concrete expression of these values was to be the establishment of ujamaa villages, in which land was to be held in common and worked together by village members for the common good.

Writing just three years after the Arusha Declaration, James has little to say with regard to the actual workings of ujamaa but is very sympathetic to the overall goals of the policy and makes several important points with regard to anachronistic legislation and other legal anomalies resulting from the ujamaa program. Problems with regard to property rights have been created, not only in the newly established ujamaa villages, but also in the older de-

veloped areas where leaseholds are prevalent. The result is a multiplex system of land tenure, with several forms co-existing. Old, inappropriate legislation

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remains on the books, a legacy of the colonial period. James recommends that some sixteen statutes be repealed because they are out of line with present-day social and economic conditions--especially in the post-Arusha period. He does not believe, however, that ujamaa villages should be incorporated as others have recommended as a first step toward registering occupancy rights (with the goal of ultimately acquiring loans against security in the land); such a step is not appropriate for the collective sector. And indeed, as of 1970, there was no indication that this might be done.

A briefer discussion of registration opportunities is found in the following:

TA2 Larsson, F. Gerhard. "Land Registration in Developing

Countries." U.N.O. World Cartography 11 (1971): 33-65.

In the paragraphs dealing with Tanzania specifically (pp. 54-56), Larsson notes many of the specific rules and obligations governing the registration process. Unfortunately, it is not at all clear if his discussion refers only to the colonial period or if it applies equally to the post-independence era. It appears that the mechanisms he notes were initiated during the British occupation and continue in force as of 1971.

Urban lots and new settlements must be surveyed by "normal ground survey methods," before grants are made. Most of the urban lots are not registered,

more are registered. Land is usually registered on application of the owner, while the right of occupancy is granted if the applicant has plans for the land and the appropriate documents demonstrating "possession." Larsson does not provide any details, but it appears from his discussion that this is a cumbersome process. He comments that the government can speed up the process of registration by declaring a district a compulsory first-registration area. In this case claimants are ordered to make known their interests in land within a specified time limit. At the time of Larsson's study, in 1971, this procedure had not been implemented to any extent.

Customary land seems to have been treated as a right of occupancy. One could own trees and buildings and have the right to use the land. But this right disappeared when the occupant left the village or did not cultivate the land. In principle, there also appear to be opportunities for the registration of customary land as a right of occupancy. Larsson writes that there were costs

registration. The advantage to registration is security and the consequent opportunities for securing loans. He notes that to date (1971) there has been little registration of customary land and suggests that perhaps peasants see the costs associated with registration as greater than the potential returns.

After independence, the government of Tanganyika passed the Freehold Titles (Conversion and Government Leases) Act, which brought into the public sector an additional one million acres of land. Larsson points out that al-though land itself is no longer an exchangeable commodity, it continues to possess marketable value. People can sell or buy the "improvements" to the land, e.g., buildings and permanent crops. The quality of these improvements

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affects not only the price they would fetch upon exchange, but also in a sense the value of the land. Similarly, favorable location of land (by a railway station or by a river) will affect the price of the improvements. The Act vests the absolute interest in land in the State. A peasant can apply to the State for a right of occupancy and continue to use the land so long as he can prove he is using it in a "responsible" way. Although the government emphasized that the intent of the 1963 law (and of the ujamaa policies, discussed below) was to give the people the rights to, and responsibility for, their own land, it appears that the new law actually decreased peasants' control over land.

Larsson also comments on the Customary Leaseholds Act of 1968, apparently designed to reform the "feudal" relationship between large landowners and cul- tivators (i.e., tenants) especially prevalent in the northwestern provinces. The act stipulates that a tribunal shall be appointed to oversee the division of land between landowners and cultivators. Larsson speculates that one of the intentions of the act was to deny the landowner his "right" to land if the cultivator could prove that he had been using the land for a "long period of time" (p. 55). If the cultivator could prove this, he would be granted a right of occupancy. Larsson comments that this is only an adjudication procedure, noting that the right of occupancy is not recorded in the Land Register and that customary rules of transfer and inheritance continue to apply. He believes that this law will foster the development of private rights, including possibilities for mortgage and sale, in customary land.

It appears from James and Larsson that the mechanisms and poten- tial for registering land on an individual basis, as rights of occu- pancy, continue in force. Even with the implementation of the more "radical" socialization policies, especially those affecting tenure in 1967 and 1973, it is not obvious from the literature that these opportunities and mechanisms have been extinguished. One researcher* noted that in Ismani, a large commercial maize-producing area, land sales and rentals, along with customary forms of land acquisition, continue to occur. Different ways of acquiring land, including allo- cations from the the Village Development Committee as well as land purchases or rentals from other farmers, co-exist. Feldman does not state whether these latter acquisitions are registered, although the paper substantiates the continued existence of tenure practices pro- hibited by the State. The fact that these forms of tenure continue to exist within the purview of the Village Development Committee speaks to the State's inability to enforce its policies.

The ujamaa program and villagization schemes have been analyzed extensively in a number of books, articles, and other publications, the most useful of which are cited at the end of this section on Tanzania. In the context of this review of registration literature,

* See Rayah Feldman, "Custom and Capitalism; Changes in the Basis of Land Tenure in Ismani, Tanzania," Journal of Development Studies 10 (1974): 305-20.

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however, the importance of ujamaa is somewhat ambiguous, for while the program has little to do with land registration directly, its indirect implications for land registration and critical role in Tanzania's development course in the past two decades cannot be ignored. Harbeson's article provides a recent and concise overview of the ujamaa program and, most importantly, a discussion of various policy changes that have been considered by the Tanzanian government and international donors in the past few years.

TA3 Harbeson, John W. 'Tanzanian Socialism in Transition:

Agricultural Crisis and, Policy Reform.' UFSI Reports (1983), no. 30.

In the initial period of ujamaa, from roughly 1967 to 1972, emphasis in the rural areas was on the creation of ujamaa villages together with the collectivization of production. Recognizing that peasant agriculture was the backbone of Tanzania's economy, the program sought to achieve development while at the same time considering local needs and circumstances. Progress toward these goals, however, turned out to be a great deal slower than had been envis- aged. Although a number of ujamaa villages were set up and formally registered as such with the government, many were only nominally in compliance with the principles of the program--what one analyst has called "signpost u'amma villages."

Beginning in 1973, the government shifted its emphasis from collectiviza- tion of production to villagization, conceding that the former had been un- successful and that the creation of ujamaa villages had not occurred at the rate or with the results that had been hoped. Instead, it chose to postpone collectivation for the time being and to work toward villagization alone, with the goal of providing improved educational and public health facilities to the new, concentrated settlements. These settlements were to be registered as simple villages, with progress toward becoming ujamaa villages coming after (rather than as a requirement for) registration.

In neither of these two periods--in which the distinctions must be seen as differences of emphasis rather than as abrupt reversals of policy--have the goals of collectivation or villagization proven especially beneficial for Tanzania's economic development. Many critics have attributed this failure to the misapplication of the principles of the Arusha Declaration and subsequent elaborations, but Harbeson places the blame squarely on the policy itself; the failure of ujamaa, he writes, is fundamentally a failure of domestic insti- tutions, and the results for Tanzania have been devastating. At the base of this failure has been a consistent neglect of process (by planners as well as critics), of consideration of precisely how interaction between peasants and officials is to be achieved.

The crisis in Tanzania has led to a campaign by international donors, including most notably the World Bank, for policy reform and to a willingness on the part of Tanzanian authorities to re-think some of the ujamaa objectives. Two important efforts have resulted, the 1982 Task Force on National Agricultural Policy and the 1983 Agricultural Policy Paper, both of which have implications for the future of land registration in the country and which, if implemented, could fundamentally alter the direction of Tanzania's development. The former recognizes that performance on the collective village farms has been disappointingly poor, and instead calls for a return to private landownership.

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Adopting a pluralistic approach to agricultural production, it recommends not only that individual smallholder production be fostered, but also that medium-and large-scale private production be given a role in the Tanzanian agricultural sector.

As a response to the suggestions of the Task Force and in contrast to some of its more "revolutionary" recommendations, the 1983 Policy Paper is somewhat more tempered in its statements. It too focuses on the need to de-centralize development initiatives, but instead of envisioning private mediumand largescale farming as having a role in this, looks to smallholder production almost exclusively. Most interesting is the recognition that one of the principal drawbacks in the system of land tenure implicit in the ujamaa program is the lack of security in land at the household level. In order to end this insecurity, the paper recommends, individuals should be given 33to 99-year leases, while villages could be eligible for 999-year leases which could then be sublet to individuals. This suggestion has not as yet been put into effect, but has the potential to change the structure of the agricultural sector in very fundamental ways.

A more detailed consideration of the findings and recommendations of the 1982 Task Force is found in the following paper:

TA4 Gondwe, Zebron Steven. "Agricultural Policy in Tanzania at the Crossroads." Land Use Policy 3:1 (January 1986): 3136.

The Task Force noted that there were four legal tenure regimes in exis- tence: government leaseholds, rights of occupancies, customary tenure, and collective tenure. It also recognized three forms of agricultural production: the homestead farm, on which the peasant grows crops of his own choice and the produce belongs to the family; the block farm, a piece of land within the vil- lage worked by a single family; and the collective farm, on which all village residents are required to contribute labor.

In his review of the report, Gondwe notes that the Task Force did not make any statements about the registration of ujamaa villages, only about registered villages. He was told that the Task Force believed that there was not a single

the transition from villages to ujamaa villages. The recommendations of the Task Force include the establishment of policies aimed at increasing land security. First, land allocated to village councils should be given for a period of 999 years or longer. Second, villages should grant individual farmers inheritable leases for a period from 33 to 99 years. These leases may not be sold, but the land leased may be surrendered to the Village Council. The Council may award compensation for improvements to the land. As of this writing, there is no indication that these policies have been implemented by the Ministry of Lands.

In 1985, the Government of Zanzibar asked J.C.D. Lawrance to prepare draft legislation for a proposed project of registration of land