land policy

some reflections on the draft national land policy, 2016 by youjinbchung

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Earlier this year, the Tanzanian government launched the review process for the National Land Policy (NLP), 1995. I have had the privilege of observing (from the backseat) the unfolding of this process, particularly the ways in which non-state actors were struggling for voice and space in civic engagement. Some of my colleagues have already provided some great insights on the draft NLP (see this, this, and this), but I want to share some of my raw reflections here.

1. Shady Statistics?  

Some of the statistics used in the draft NLP are questionable. On p. 24, it states: “About 80 percent of all villages in the country are surveyed". But elsewhere on p. 19, it says: “In general it is estimated that only 15 percent of land in Tanzania is surveyed”, and that "70 percent" of all land in the nation is village land. These statistics don’t add up.

Also, the '70% village land, 2% general land, 28% reserved land' thesis should be used with qualifications, especially given that these data are from two decades ago, and thus (probably) not reflective of the status quo. An unpublished 2012 report for the USAID states that the aim of the Tanzanian government is to transfer 17.9 percent of vilage land into the general land category (in how many years?) to allow for the commercial development in the Southern Agricultural Corridor of Tanzania (SAGCOT). The SAGCOT Centre highlights that its aim is to turn "350,000 hectares of land into profitable production"by 203o. With such increasing commercial pressures to transfer village land to general land, the extent of involuntary displacement and resettlement will become more ubiquitous.

This brings me to the issues of valuation, compensation, and resettlement.

2. Whose and What Kind of Value? 

'Land value' in the context of the NLP strictly refers to the market value of land. By extension, it refers to the market value of unexhausted improvements on the land, such as permanent dwellings, structures, and perennial crops like fruit trees. What is excluded are common property resources, such as non-commodified indigenous trees, forests, bushes, grasses, water, dams, ponds,meadows, pasture, and etc.

These common property resources provide essential material benefits for local users, as sources of food, fuel, fibre, building material, medicine. At the same time, they carry immeasurable cultural values and knowledges which are passed on intergenerationally. The draft NLP makes note of how the current policy falls short of meeting the 'international best practice' on involutary resettlement. The International Finance Corporation (IFC), for instance, in its 'Guidance Note 5: Land Acquisition and Involuntary Resettlement', states that the loss of common property resources "has been identified as one of the primary impoverishment risks associated with involuntary resettlement and requires careful mitigation" (p. 7). Yet, it is unclear to me how the NLP aims to address this issue. The discussion of common property resources (and their multiple uses and values for rural communities) is critically wanting.

3. Waiting in Limbo for Compensation?

The draft NLP rightly acknowledges that, at present, there is no administative appeal mechanisms for those aggrieved with compensation, and that there are significant delays in compensation payments (p. 22). This is precisely the condition I've observed in Bagamoyo; there are many people who have been, and still are, waiting for compensation and displacement to make way for a large-scale agro-industrial project, an economic processing zone, a port, a tarmac road, an airport, etc. According to national land laws, people are entitled to be paid within 6 months of compensation valuation, and if it is delayed, they should be paid interest (6 percent per annum) until compensation is paid in full. However, what is significantly lacking in the current policy and laws is stipulations on the maximum waiting period. In other words, there is no statement, to my knowledge, that talks about for how long people are supposed to wait for compensation. According my interview with a Tanzanian legal scholar and professional who has written about the human right to compensation: "The only thing people can do, unfortunately, is to wait" (4 August 2016). Wait they shall, but for how long? And under what conditions?

This is a significant oversight in the draft NLP, because people are often prohibited from making long-term improvements on their land or face other land use restrictions after compensation valuation. At least this is what I have observed in Bagamoyo over the past few years. As one might expect, if compensation/displacement is delayed for a long time, people are likely to incur significant opportunity costs, economically, socially, culturally, politically, psychologically, and emotionally.

4. Delayed/Unpaid Compensation x Revocation of Title? 

It is in this context that I am puzzled by policy statement 4.6.3 Acquisition and Revocation of Rights of Occupancy. It states that the Tanzanian government will "ensure that revocation process is not initiated within first ten years of tenure for non-development of land". How and in what ways did the ten-year grace period come about? What are its social implications?

What if, for instance, the acquirer of the land (whether domestic or foreign) has received the Certificate of Title; has 'valued' the local populations and their property; has promised them compensation within six months; but failed to obtain the necessary funds to develop the land and failed to pay compensation for over ten years; and for all those years, restricted the local people from making long-term improvements on their land? Where does the liability of compensation payment fall? The government that is the ultimate landlord/custodian of all land the country? The private individual or company that acquired the land? What are the modes and mechanisms of redress for the people who have had to wait indefinitely for compensation payments?

As I write this, I am reminded of a young man, who asked me in one inteview: "Imagine. If we take away your pen and paper now, what will you do? What if we take them away from you indefinitely?" (20 September 2016). This thought is anxiety-inducing to say the least for researchers like me, for whom the pen is indispensable for my livelihood. It's hard to imagine how farmers are expected to live with so many restrictions on their land, that is, their livelihood, with no end in sight.

5. Tackling 'Unplanned Urban Settlements'?

In the draft NLP, resettlement is often mentioned in reference to "Unplanned Urban Settlements" (Sections 2.19 and 4.19). I wonder: is this because those who are displaced and resettled from rural areas are expected to settle in urban fringes? Whatever the reasoning behind this may be, the draft policy seems to believe that the solution to the problem of informal settlements is to have more planned and orderly urban planning processes. This is needed eventually of course, but the policy eclipses a more fundamental issue: the structural causes of rural-urban migration and the (re)production of 'planet of slums'.

In my research, I have interviewed scores of migrants, who have left their natal villages in Tanzania's interior (as far as Kigoma and Kagera) to Dar es Salaam and then back to rural Bagamoyo. The primary reason? Because they failed to eke out a living in the city; they could not get a job, most of them being Standard 7 leavers, or with no education at all. In Dar, they lived in urban slums, such as Manzese, Mwananyamala, Mbagala, and Tandika--all of which would fall under what the draft NLP calls 'Unplanned Urban Settlements'. Many have left their natal villages in the first place due to lack of land--arising from increased land concentration and land grabbing by urban elites, investors, and even national parks. Yet, after having experienced abject poverty in the city, they ended up in rural Bagamoyo, through words of mouth, only to be faced with insecurity of tenure and the threat of (imminent) displacement due to a large-scale sugarcane project. Without tackling these structural issues first and foremost, planned settlements will soon again morph into a mosaic of ghettos.

6. Commodifying 'Land Rights Under Water Bodies'? 

To me Sections 2.26 and 4.26 are the least thought out. The drafters of the policy were concerned about lack of legal procedures for allocating and administrating "land rights under water bodies" for emerging activities like cage fishing, fish farms, floating hotels, jetties (p. 32 and 55). This raises the specter of water/blue grabbing, which is inextricably tied to land grabbing. The negative environmental and social impacts of the Blue Revolution and other water/land-based extractive activities are not at all raised in the draft NLP. The Sections on Environment (2.27 and 4.27) are thin and frankly, disappointing. When the NLP states that water resources remain underutilized, it ignores the fact that many rural people depend on rivers, ponds, streams, and other water sources for drinking water,  washing clothes, bathing, fishing, collecting clay for making cooking utensils, and etc.

Without adequate regulations in place for high-density aquaculture like fish farms and cage fishing, how can land rights under public water bodies be effectively allocated and administered? Data is relatively scanty in my knowledge, but commercial aquaculture (depending on species) will likely have environmental impacts that are similar to those of intensive animal husbandry. Most evident is the accumulation of waste (feces and unconsumed feed), which may lead to eutrophication, and the associated depletion of oxygen and the proliferation of toxic algae. Combined with the use of pesticides and antibiotics required of large-scale, high-density fish farming, the local marine biodiversity will be adversely affected, and could possibly introduce some invasive carnivorous species. [If you haven't watched Darwin's Nightmare, I highly recommend you watch it]. And as it is in all food production value chains, post-harvest activities in aquaculture will also lead to further greenhouse gas emissions. Just like commercial agriculture, commercial aquaculture will be promoted for their 'job-creating' effects, but the questions we need to keep asking is: Jobs for whom and under what conditions?

7. Adding Women And Not Even Stirring? 

In the foreword, the Minister writes that one of the objectives of the policy is to ensure equitable access to land for all Tanzania "irrespective of gender or ethnicity" (p. 6). Why just gender or ethnicity? These are not standalone categories or separated realms of experience. Nor are gender and ethnicity isolated from other axes of power, such as class, race, age, marital status, (dis)ability, and etc. These categories are hatched together; and together they shape the complex identities and subjectivities that mediate the terms of land access, use, and control.

Section 2.28 sadly refers to women as a homogeneous group, and later talks about two sub-categories of women: widows and those "experiencing hardship and poverty". What about single women and mothers--unwed, separated, divorced, widowed, or raped--and their idiosyncratic challenges in land access, use, and control? And what about the plight of poor rural men vis-a-vis rich urban women?

Section 5.2.1 is slightly more satisfying, where the following statement appears: "Both women and men experience gender based insecurity of land tenure depending on ethnicity, rural or urban, education attainment, poverty status, age, tribe, and knowledge of the legal system". How intersectionality mediates (and complicates) access to/control over resources must come more front and centre, so as to avoid the pitfall of reducing the 'gender issue' in land tenure to merely an issue of 'women's access to land'.

Lastly, while gender is highlighted as a cross-cutting issue, more work needs to be done to demonstrate how and it what ways it crosscuts with other policy issues. I want to talk about one issue in particular: the gender dimensions of compensation valuation. In my study, I have found that when it comes to valuation, those who were registered by government valuers were essentially all men, as they are perceived to be the 'heads of households' and/or the de facto owners of land. Of course there were exceptions, such as widows, divorcées, and other 'women without men', who were responsible for finding food and caring for their families. This male-bias occurred even when the Chief Valuer and authorized land valuers are/were women. Promoting 'equal representation of both women and men in land administration' may balance the gender ratio in the workforce, but that won't necessarily transform patriarchal bureaucratic practices.