Tough conditions for foreigners eyeing land for business in Tanzania
Wednesday December 07 2016
Tanzania is working on a new land policy that will reduce leases of land owned by foreigners from 99 years to 33 years.
The Draft National Land Policy, seen by The EastAfrican, which has been subjected to public scrutiny by the Ministry of Lands and Settlement Development, is expected to be adopted early next year.
If passed into law, foreign investors in Tanzania will be allocated land for a maximum period of 33 years. In addition, foreigners will only hold land for investment.
The policy defines a foreign investor as a person who is not a citizen of Tanzania or a body corporate whose controlling interest is in the hands of non-citizens.
There have been many instances of foreigners applying for land and not utilising it for the stated purpose. To curb such cases, foreign investors will be required to register with the Tanzania Investment Centre (TIC) to acquire land.
“To purchase a parcel of land from individuals or companies, once the buyer and seller have agreed upon the price, the seller is required to surrender the land title to the Commissioner of Lands in order to re-issue it in the name of TIC, which will eventually prepare a derivative right for an investor,” reads the draft.
“This is good for us,” said land rights advocate Herman Lupogo.
“The government intends to protect the rights of Tanzanians and will also ensure the land occupied is being used for the purpose attained,” he added.
The proposed policy aims to minimise conflicts between foreign investors and communities and to promote optimal utilisation of the country’s resources.
Tanzania passed the Land Act (Cap 113) in 1995 and Village Land Act (Cap 114) in 1999, giving foreigners rights to own land for up to 99 years for investment only. The laws, classified the country’s land into three major categories: General land, village land and reserved land.
Before then, foreigners had a wide range of options when choosing land, depending on their requirements, and were not limited to only acquiring land listed under Tanzania Investment Centre.
Under the draft National Land Policy foreigners will be allowed to directly own land (occupational rights) but not hold it on behalf of others (derivative rights).
The land tenure system of Tanzania has passed through different historical reforms for over the past eight decades. The history dates back to 1923 when the colonial British Legislative Assembly enacted the Land Ordinance Cap 113.
A forum on the draft National Land Policy took place in April this year involving different stakeholders and civil society organisations.
The current National Land Policy permits land to be given to an investor in the form of a derivative right. This allows investors to lease land for investment purposes for a period of 32 years, 65 and 98 years. The power to grant right of occupancy is vested in the president for a period of up to 99 years.
According to Land Act (1999) section 45, which emanates from the Land Policy 1995, a breach of any of the conditions in the certificate can lead to the right of occupancy being revoked by the president. This means that an investor could lose the right to the land for not fulfilling its promises to the villagers if they were included as conditions in the certificate.
However, the draft policy faces criticism from different stakeholders.
“Although the new policy drafting process included consultations conducted in eight zones across the country, these were rather rushed and were not inclusive,” said Emmanuel Sulle, a researcher with Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape in South Africa.
Tanzania’s CSOs insists on the need for the Land Commission to expand the scope of participation of citizens on the policy, and take into account their views. For the first time in the country’s history, the national land policy recognises the right to equal access of land for both women and men.
Under the country’s Constitution and other laws, women have equal rights to property as men The laws that give women rights to own land just like men include the Marriage Act of 1971 and the Land Act of 1999.
Others are the Village Land Act (1999); and the Mortgage Financing (Special Provisions) Act of 2008 amending the Land Act of 1999 to require additional safeguards for spouses in the mortgage context. Although the laws guarantee women access to land, the draft policy is not explicit on how the rights of women will be safeguarded to enjoy their rights.
Some women claimed that they are still being discriminated against and denied their rights to own land.
“The draft Land Policy only talks about access, but does not specifically define and protect women’s rights to ownership, control and decision-making about land,” says Prof Marjorie Mbilinyi, gender and development analyst and member of Tanzania Gender Networking Programme (TGNP – Mtandao).
According to critics, the proposed national land policy should not only guide the allocation, ownership and use of land but also help resolve recurring land conflicts between farmers and pastoralists, natives and investors, government and citizens.
“Prioritise land use plans and allow participation of citizens in order to deal with land disputes,” reads the CSOs’ recommendations.