Dr. Ringo W.

Tenga Page 1 of 20 Cornell World Food Day Paper

Decentralization and challenges of Equity in Local Governance

By Ringo Tenga

“It is obvious that the nation State in Africa is organically unachievable”

Joseph Kizerbo (1995)1

1. Beyond the Myth of the ‘Nation State’ in Africa

That the state in Africa is in crisis needs no detailed explanation.2 Political and
theoretical debates in Africa for the last thirty years, have been on the raison
d’etre of the colonial and post-colonial state (Nkurumah, Frantz Fanon,
Amilcar Cabral, Samir Amin, Walter Rodney, Dan Nabudere, Issa Shivji, etc.).
The historian Basil has called it the Black Man’s Burden.3 Critical question on
the African state still persist. Did the process of colonization create
autonomous National States in Africa? Is the Organisation of African Unity
constituted of autonomous and independent states? The definition of an
“autonomous and independent state” would entail a determination of whether
the given state has endogenous structures both politically and economically;
sovereign and self-reliant. It does not need any miraculous analysis to
conclude with fair estimation that almost all African states are neither
sovereign nor self-reliant. The international/global economic system has
taken care of that. As Professor Ki-Zerbo has suggested theoretical debate on
the African Nation State often deals either with an illusory concept or with a
vanishing entity, if ever there was one:

“Basil Davidson rightly identifies the nation state as the

principal ‘burden’ borne by black people from now on. But it
would have been more accurate if he had situated the state within
the organic structure of the so-called ‘modern’ world where the
state is accompanied or supported by two other actors, namely
the market and science, including the science of management. It
is under this triple burden that Africa is collapsing today. The
state is no sooner born than the International Monetary Fund is
calling for it to be cut back.”4

In terms of economic systems which may guarantee endogenous development

African states do not have resources. They also lack both the social and
cultural resources that would have given them a basis to create alternative
paths for development. In the final analysis they simply ‘cling to the
scattered elements of an imported identity, which exists in a strictly legal
1
Ki-Zerbo, Joseph. “which way Africa” Reflection on Basil Davidson’s. The Black Man’s
Burden in Development Dialogue Journal Vol. 2, 1995, pp.99
2
Laakso, L. and Adebayo O. Olukoshi, 1996 “The Crisis of the Post-Colonial Nation-State
Project in Africa” in Olukoshi and Laakso (Eds). 1996. Challenges to the Nation-State in Africa
[Noordska Africanist, Uppsala]
3
Davidson, B. 1992. The Black Man’s Burden (James Currey, London).
4
Ki-Zebro, ibid.

28decentalisation.ret
Dr. Ringo W. Tenga Page 2 of 20 Cornell World Food Day Paper

sense but is devoid of the socio-cultural roots which would have given it real
legitimacy and authority’.5

The endemic crisis is manifested through the crumbling of the Nation-State,

the rural-urban immigration which siphons the African rural masses into the
cities breaking the rural economy and furthermore throws urban centres into
chaos and at once they develop a “parallel” economy, and also the existence
of the military states which are internationally taken to be “predatory and
illegal” (e.g. Buyoya of Rwanda).

Reactions to this malady have been various. But two principal movements
have been discerned; whilst on the level of the nations the idea has been to
promote regional integration or federalism,6 on the country level the major
reaction has been decentralisation (deconcetration) of power from the center
to the local state machineries.7 The concern of this paper is on the latter
process.

The whole movement of “liberalisation” of the economy has entailed

promotion of the private sector and democratization of hitherto dictatorial
political institutions.

The World Bank has been at the forefront of this movement. Its Annual
Reports in the past decade manifest a clear message which leans towards
decentralisation. The 1997 World Development Report entitled The State
in a Changing World8. Chapter 10 of the Report concentrates largely on
how to build an effective State which is at the same time ‘closer to people’.
Emphasis is given to greater accountability and responsiveness through
participation (electoral participation, representation, involvement of the civil
society) on the one hand, and decentralisation, on the other.

Yet is this a complete new phenomenon? Clearly no. Since the colonial
times in Africa the argument for decentralisation of the state machinery has
been current in a variety of forms. The case of Tanzania is telling. A short
review is in order.

2. Equity in Local Governance: The Historical Record in Tanzania.

2.1 The Colonial Scheme: Local Government as “the Power Behind

the Throne”

Mainland Tanzania was a German Colony from 1891. The Germans created a
state, imposed on the heterogeneous pre-colonial African people, which was
authoritarian, non-representative in character and subjected the whole
population to German Rule. However force alone did not gain the Germans
legitimacy since when they tried to enforce collectivization of cash crop

5
Ibid.
6
Basil Davidson, ibid.
7
Hofmeister, W. and Ingo Scholz Traditional and Contemporary Forms and Self-
Government in Africa [Conrad Adenauer Stiftung. Johannesburg 1997].
8
World Bank Publication (Oxford University Press 1997)

28decentalisation.ret
Dr. Ringo W. Tenga Page 3 of 20 Cornell World Food Day Paper

agriculture (Cotton) they met with resistance which resulted in the famous
“Maji-Maji” resistance rebellion of 1905. To counter this resistance they
decided to undertake what they termed as “Scientific Colonization”. This
innovative strategy called for winning over the “natives” by incorporating
them into the cash economy through education and raising progressively their
cash requirements. At the level of governance they created “native leaders”
who carried on good governance, for the Germans, at the local level. At the
top of the German colonial administration was the Governor, followed in
each district by a District Officer who had judicial, legislative, executive and
military functions. According to a reknown Tanganyikan historian John Illife
the District Officers “with their brutal soldiers and police … inspired great
fear!9 Under them were the native rulers who under a system of “Indirect
Rule” perfected by a German Governor called Rechenberg effective local
governance structures were maintained. Tribal officials known as Jumbes,
Akidas, Liwalis, Chiefs and headmen were bolstered, and they created a sub
rosa system of governance which legitimized the German Colonial State10.

After the First World War the British took over Tanganyika on a Mandate of
the League of Nations. According to the British Mandate of East Africa
(Article 3), Britain was responsible for “the peace, order and good
government of the territory” and had to undertake the promotion of the
material and moral well being and social progress of the inhabitants of
Tanganyika. Britain was thus given full powers of legislation and
administration.

As the Germans had done before them the British perfected the Indirect Rule
System which became the basis of their “good governance” at the local level.
According to Illife the essential features of native administration under
Indirect Rule comprised of 3 parts:

“…..a native authority-Chief, Council, or some combination of

these – with legislative and executive powers; native Courts; and a
native treasury, which collected all taxes, remitting a percentage to
central government and retaining the rest to pay the native
authority and finance local works and services. The European
Officer’s normal role was to supervise and educate, but if
necessary he could issue orders to the native administration.”11

This essential characteristic of local government has remained the basic

structure up to today. Functionaries have been changing in name, authority,
etc., but the essential characteristics are the same. As noted elsewhere, the
Native Authority Ordinance of 1926 incorporated the structure into law.12 A
native authority was “any chief or other native” declared to have authority

9
Illife, John. Tanganyika under German Rule 1905-1912 (Nairobi EAPH, 1969). Pp.118-
209
10
Liebnow, J.G. Colonial Rule and Political Development in Tanzania; The Case of the
Makonde (Nairobi E.A.PH’ 1971) pp.84
11
Illife, Supra, pp. 319-320
12
Tenga, R.W. Custom and Law with Reference to the Tanganyika Legal System
(Unpublished Doctoral Thesis, Cornell, 1985) Chpt. V).

28decentalisation.ret
Dr. Ringo W. Tenga Page 4 of 20 Cornell World Food Day Paper

over a specific area for the purposes of the Ordinance.13 A chief meant any
native recognised as such by the Governor; and a native meant any member
of the African race.14

The Governor was empowered to establish native authorities under Section 3

of the Ordinance. These had a general duty of maintaining order and good
government. They were given powers to issue orders in their areas of
jurisdiction regulating trade, prohibiting anti-social conduct, sanitation,
collection of tax, recruitment of labour, registration of births and deaths,
agriculture, etc.15 The production system they supervised was largely
concerned with the export economy.16 A general provision gave plenary
powers to the native authority to give directions

prohibiting, restricting, regulating, or requiring to be done any

matter or thing which the native authority by virtue of any
native law or custom for the time being in force and not
repugnant to morality and justice, has power to prohibit,
restrict, regulate, or require to be done.17

The native authorities were supervised by provincial and district

administrative officers who had power to affirm or vary their orders. 18 They
even had, with the consent of the Governor, power to punish a native
authority.19 Finally, natives who contravened the orders of the native
authorities were subject to arrest without a warrant.20

The identification of these “chiefs” was often based on myth. The stereotyped
version of Tanganyika’s social organisation assumed that every African lived
in a “tribe” that had a “chief.” Hence, the main task of each administrator
during the initiation of indirect rule was to find the chief. Historians and legal
scholars have shown how the task was formidable, indeed impossible in
stateless societies, and how it was often pursued to an outrageous extent. 21 A
provincial commissioner in southern Tanganyika, where stateless societies
predominate, is recorded to have directed his assistants on how to go about the
task in what remains a classic statement of the mechanics of indirect rule and
its paradoxes:

Each tribe must be under a chief. In some cases there is

already a recognised chief, but in others there will be rival
claimants from whom the chief must be chosen. The wishes of
the whole people must be taken into consideration, for it is
useless to try to establish a chief who is not accepted by at all

13
Section 2.
14
Id.
15
Sections 8-9. Under Section 15 they were empowered to make rules.
16
Iliffe, supra note 3, pp. 342-380, “The Crisis of Colonial Society, 1929-1945.”
17
Section 8 (g).
18
Section 11.
19
Section 15.
20
Section 12-14.
21
Morris and Read, supra note 26, at p. 174; Iliffe, supra note 3 at pp. 318-340 “The Creation
of Tribes”; J.D. Graham, infra. Note 64.

28decentalisation.ret
Dr. Ringo W. Tenga Page 5 of 20 Cornell World Food Day Paper

events a large majority of his people. The greatest care must be

taken to establish the right man. Frequently rivals can be made
to support a majority by making them sub-chiefs, if the
members of the tribe permit …

Remember always that a chief is a native, with a native’s

partially developed sense of right and wrong, passions and
temptations. Remember also that he is your principal weapon
in your work and that if the breaks you will have to make
another ...

Chiefs must be made to understand that we are increasing their

power and paying them salaries, and that in return we expect a
great deal more from them. They must collect their own taxes
and must be held responsible that every man in their areas is
entered in their tax registers, whether he pays or not; they must
provide us with labour required, and they must see that the
burden is equitably distributed amongst their people. They
must be our executive in every matter affecting their people and
their country, from the treatment of yaws to the upkeep of roads
…

Chiefs and their subordinates must be held responsible for law

and order in their area. They must be taught to act without the
aid of the Boma or of the police. If it is necessary to effect the
arrest of a native the local headman should do it, calling upon
his people to assist him when necessary. It should be very
seldom necessary to send native police into a tribal area: they
are the power ‘behind the throne’ and should be kept there.22

Chiefs and other native authorities were in effect manufactured for the whole
of Tanganyika. By 1950 Lord Hailey recorded the existence of some 279
chiefs and 50 headmen gazetted individually: 34 cases of tribal councils and
councils of headmen exercising powers corporately; and “44 persons not
holding traditional status, but appointed by the authorities.”23 The law that
these native authorities were told to apply or enact was taken to be valid law
of traditional authorities based upon indigenous institutions.

The local government system which was rather based on a thin veneer of
“traditional legitimacy” could not sustain crisis conditions for too long.
Resistance to colonial policy in several instances exposed the bankruptcy of
the Native Authorities. For example, in Central Tanzania, Uluguru Mountains,
people resisted a terracing program which was imposed without their
consent.24 The fact that the Native Authorities stood on the side of the central
22
J,D. Graham, “Indirect Rule: The Establishment of ‘Chiefs’ and ‘Tribes’ in Cameron’s
Tanganyika,” 77/78, Tanzania Notes and Records, 1, at p. 3, (1976)
23
Baron, W.M.H. Hailey, Native Administration in the British African Territories (London:
The Colonial Office, H.M.S.O. 1950), p. 218.
24
Maack, Pamela A. 1996 “We Don’t Want Terraces!: Protest and Identity under the Uluguru
Land Usage Scheme” in Maddox, Giblin and Kimambo (eds) Custodians of the land: Ecology and
Culture in the History of Tanzania [James Currey, London] p. 152.

28decentalisation.ret
Dr. Ringo W. Tenga Page 6 of 20 Cornell World Food Day Paper

colonial powers humbled the chiefs before the in subjects. Pamela Maack
recounts how during the colonial campaigns on soil conservation the Luguru
resented the terracing method as it involved a lot of handwork with minimum
returns. The Native Authority Chief one Sultan Sabu bin Sabu was highly
ridiculed as he was considered a sell out by the local population. At meetings
people would shout at him and ask “where in the money?” meaning where is
the money given to him as bribery to sell out his own country. Whilst the
British under Indirect rule saw the Sultan as an indigenous leader the Luguru
viewed the “native authority chiefs, sub chiefs and government headmen …25
as representatives of governments.” In ensuing riots “the Waluguru began
hurling insults, sticks and stones at their native authority chief and British
rulers."26

In the Pare Mountains in the North East a progressive taxation was introduced
without consultation. People went on a massive go slow.27 Leaders were
imprisoned and others deported. The Native Authorities clearly came out as
agents of the colonial centre. In the Meru Mountain area in the North the
colonialists alienated large portions of land from the Meru people.28 The fact
that Native Authorities remained silent was a clear disqualification of the
“indirect rulers”. Local governance was not equitable, neither was it
participatory or democratic. With the increasing winds of independence the
British decided to disband the Native Authorities and introduce local
Governments which were elective, i.e., that were supposedly democratic. The
target here was to decentralise power to local authorities as the British did not
want, in the 1950s, to hand over centralised power to Africans. A provincial
commissioner one E.G. Rowe was specifically commissioned to design an
appropriate strategy for decentralisation.29 Events overtook the
experimentation and District Councils only became rapidly established after
independence for a very different strategy: that of displacing the hated Chiefs
under Native Authorities.

It is essential nevertheless to recount the colonial creation of local governance

in detail for two reasons. First, the essential characteristics of colonial local
governments have been replicated over and over again ever. Since, the
common organisational principle for governance in colonial Africa was to
mould state organs not as “arenas of decision making” but rather as “control
apparatuses serving external interests”.30 How then could the “local
recipients” of government fiat be expected to ‘participate’ in governance?
Second, a most perplexing phenomenon is seen in the current re-construction
of local governance with its concomitant rhetoric on “equity”, the uniqueness
25
Maack, ibid., p. 165
26
Maack, ibid. p. 152.
27
Kimambo, I.N. Penetration and Protest in Tanzania: The Impact of the World Economy on
the Pare, 1860-1960 [London, 1991]
28
Spear, Thomas 1996 “Struggles for the Land. The Political & Moral Economies of Land
on Mount Meru” in Maddox and Ors. (eds) ibid., at pp. 213-240.
29
Mwaikusa, Jwani T. “Local Government Policies in Tanzania: The Political Guinea Pig” in
Donald Rothchild (ed.). 1994. Strengthening African Local Initiative: Local Self-Governance
Decentralisation and Accountability (Institute for Afrika-Kunde, 1994, Hamburg).
30
Laakso, L., 1996 “Changing Notions of the Nation-State and the African Experience” in
Olukoshi and Ladekso (eds.) Challenges to the Nation-State in Africa [Nordic African Institute,
Uppsala) at p. 45.

28decentalisation.ret
Dr. Ringo W. Tenga Page 7 of 20 Cornell World Food Day Paper

of ‘traditional knowledge and institutions” and the necessity of evolutionary

development of institutions. The same rhetoric accompanied ideological
apparatuses of the colonial system of local governance.

2.2 The Post-colonial Scheme: Local Government as a Political Scape-

Goat

After the establishment of local government councils after independence, the

new rulers made sure that the local authorities were not involved in policy
formulation. More often than not they were given the role of implementation
of government policy. Mwaikusa gives examples of massive primary
education programmes (1964-1969) whose complexity could not be handled
by the populist central government but the task was rather delegated to the
local authorities whose weaker structures could not handle the burden but the
political expediency of seeking scape-goats mandated the strategy. Similarly
tax collection programs were initiated by the centre to be implemented by the
local government. In 1968 at the lakeside town of Mwanza a zealous cash-
strapped local authority arrested tax-evaders on a massive scale and
incarcerated them with the sad consequence that 11 of them suffocated. An
embarrassed central government, pursuing a populist line, condemned the
local authority actions and abolished local tax and produce levy. As the local
authorities financial base was broken the authorities’ remain a deadwood up to
1972 when the question of “good governance” at the local level was once
again reintroduced in Tanzania through the Decentralisation Programme of
1972.

The decentralisation exercise here was what has been referred elsewhere in
professional literature as the Integrated Administrative Approach.31 In this
model the central government agencies directly administer all technical
services; and its area-co-ordinators and district-administrators become
responsible for co-ordination. In Tanzania this was the era of the Regional
Development Directors (RDDs) and District Development Directors (DDDs).
The local authorities do not have any effective control over central
government activities in their particular areas. The model had been
operationalised in Sierra Leone, Swaziland and most francophone countries.
In Tanzania the model was varied to include politically dominated
development committees which were to complement the integrated
bureaucratic/technical agencies at the regional, district and local levels.
Nevertheless although the committees were structured to give a popular
participatory input they were made up mostly of the One-Party zealots and
favourites incapable of giving any serious challenge to what was proposed by
Party bosses at the centre. Moreover the role of the committees was advisory
the technocrats played the dominant role in decision making.

Incidentally the Decentralisation exercise came about at the time when the
compulsory villagisation programme began. According to Mwaikusa one of
the basic reasons why this deconcentration of central government agencies

31
African Association or Public Administration and Management (AAPAM) 1984 African
Public Services: Challenges and a Profile for the future [Vikas Publishing, New Delhi] pp. 136-137.

28decentalisation.ret
Dr. Ringo W. Tenga Page 8 of 20 Cornell World Food Day Paper

took place was the feeling that active local authorities might hinder the
villagisation exercise.32

The leading example of failure of claims to participatory and democratic

governance is the issue of villagisation itself. The exercise far from being
voluntary was backed by compulsion unprecedented in the history of
Tanzania. The result was a total breakdown of the rural economy and its
peasantry base. The war with Uganda’s Iddi Amin threw into total disarray an
experiment which was bound to fail anyway. In other areas of the social
polity, e.g. provision of social services and the economy, performance
indicators were negative.33

The strategy for development that followed was one which gave emphasis to
the private and voluntary initiatives. A general withdrawal by the population
in the rural areas from state managed schemes had been going on for the
better half of the 1970s. A parallel economy had been developing which not
only set its own structures but denied the state a critical tax base. The States’
reaction against “Economic Saboteurs” in early 1980s must be seen, with this
background, as a response of frustrated bureaucrats who had lost control over
social and economic activities of the populace. In the lake regions people over
developed their own vigilante police groups known as Sungusungu. A frantic
state had to seek refuge externally – to the IMF and World Bank.

The process that followed was at first a gradual recognition of private

initiative and later the fact that the central government cannot do or be
responsible for all development. Local authorities were re-established in 1982.
The structure of the Village Assembly and its executive organ, the Village
Council was re-incorporated into the local government structures.

That the Executive has a lot of influence over local matters is a factor which
has been facing constant criticism by Commissions appointed by the
President. (The Nyalali Commission, The Shivji Commission and The Mtei
Commissions). In the wake of the so-called “multi-party democracy” local
government elections and, maybe, governance has brought substantial interest
in the art of governance and posed afresh the question of how far can
Tanzanian rulers rule without the people’s consent. It is therefore correct
when Mwaikusa sees local governance as a guinea pig for other projects; it is a
far cry from the “schools of democracy” of V.I. Lenin, yet it remains true that
by participating in these processes Tanzanians gain useful lessons in the use,
control and limits of political power.

3. Trends in Local Governance in Africa

One of the compelling evolutionary typology of local governance in Africa is

given by Goran Hyden who traces its growth from 1955 to 1990s.34 He
32
Jwani Mwaikusa, Ibid.
33
Havnevik, Kjell J. Tanzania: The Limits to Development from Above [Nordiska Afrika
institutes 1993] pp. 29-64.
34
Hyden, Goran 1994. “Changing Ideological & Theological Perspectives on Development”
in Himmelstrand V., Kabiru Kinyanjui & Edward Mbuguru (eds) African Perspectives on
Development (James Currey, London) pp. 308-335.

28decentalisation.ret
Dr. Ringo W. Tenga Page 9 of 20 Cornell World Food Day Paper

generates a simplified typology which takes into consideration matters related

to management, equity, growth, and participation. Four phases are described
each having a particular development strategy supported largely by a given
theoretical model.

The first is the “Trickle down” phase from 1955-1965. This is the typical
modernisation strategy period. The central player being the Central
Government. The theoretical bulwark was that of structural functionalism. In
Tanzania the period covers part of the colonial period and 5 years after
independence. It is correct that programmes to promote the progressive
farmer were the central concern of the government. In the 1950’s public
corporations were created to manage large-scale agriculture (e.g. the Overseas
Food Corporation and the Tanganyika Agriculture Corporation). When these
proved to be a failure settlement schemes for progressive farmers were
initiated by the end of 1950s.

The independence government took modernisation as a blue-print from a

World Bank Report on the Development of Tanganyika 1961. Modernisation
took the form of improvement and transformation which entailed the
formation of elaborate Village Settlements for the peasants and Range
Management schemes for the Maasai pastoralists.35 Both schemes failed due
to official ineptitude, lack of understanding by the recipients, over-
capitalisation, etc. The Central Government was so anxious to show that it
could manage development that it even banned the only development
association (the Ruvuma Development Association) that stood on its own
feet! It is thus a fact that all the rhetoric on participation by the citizens and
equity in this period was hollow.

The second phase is that which Goran Hyden characterises as that of Basic
Needs (1965-1975). The disappointment with overt modernisation, controlled
by the state, led to a reformulation of the development strategy. This one was
to take into account equity in the process of growth – a ‘kinder and gentler’
modernisation. Equity demanded therefore that the progressive farmer, i.e. the
kulak, the darling of the hitherto phase be abandoned in favour of the majority
poor peasants. The state became committed to a vast programme of
supporting social services, education and health. It was imperative that for the
poor peasants to participate in greater development their basic needs had to be
met by society.

Development theories that supported this shift wee based on socialist and/or
Neo-Marxist Political economy. The central player in the strategy was a
decentralised administration. Yet dispite the saintly motives of the overall
strategy it never effectuated popular participation. As already observed in
Tanzania it sank into a technocrats maze of integrated development
programmes which merely deconcentrated central government to the
grassroots. The most vicious authoritarian programme that of villagisation
was carried out at this time. Furthermore, local authorities were actually
abolished. In essence this strategy was not very different from that of
modernisation. It never encouraged participation or development of the local
35
Tenga, Ringo. Pastoral Land Rights in Tanzania: A Review (IIED, London, 1992).

28decentalisation.ret
Dr. Ringo W. Tenga Page 10 of 20 Cornell World Food Day Paper

initiative. It sought the consent of the citizen not by dint of example but by
force.

The Third Phase according to Hyden was characterised by a development

strategy which resented to grass-root organisations. He calls it small is
beautiful (1975-1985) The central state agencies had proved a failure to the
recipients of its programmes and to the donor of aid. The recipients had
withdrawn into private and informal activities outside the ambit of the
“formal” sector. The World Bank expousing a neo-liberal political economy
vision published in 1981 a Report entitled Accelerated Development in Sub
Saharan Africa which gave a clear statement of the strategy that would
displace the state with private and voluntary initiatives. It was pretty obvious
that small scale, localised efforts, could achieve much more than what
centralised large-scale state bureaucracies could do. It recognised the
necessity of involving institutions of society those which people participated
freely and voluntarily.

The effect of this strategy was at once to recognise the value of local
governance. The reintroduction of Local Government Authorities in Tanzania
came in 1982, a year after the World Bank’s report.36 In the same year an
Agricultural Policy was published which gave a prominent space for private
ownership of the means of production in Agriculture.

Concepts of community based organisations (CBOs) which managed health-

care programmes, water management and conservation sprouted and were
implemented. In other areas a people’s movement for justice was created
based on the so-called Sungusungu groups. The basis for calling into question
the central structure was being created.

Yet it is also clear that the Tanzanian state was thrown into confusion. How
was it to incorporate the autonomous initiatives into an overall development
strategy? Was it to ban “Sungusungu” or incorporate it into its administrative
system?

The Fourth phases is that of creating an enabling environment (1985-todate).

The central player is the intermediary organisation: non-governmental
organisation (NGO) or local government. The objective is participation and
growth. Presumably this phase is supposed to combine governance and equity
at a higher level by involving all players in the process of planning.

4. Governance and Equity

The fact that the participatory aspects of local governance were not taken care
of by the formal structure in Tanzania have been documented even by a
Presidential Commission appointed to assess the propriety of a “Multy-Party”
Democracy. There have been piece meal changes initiated to bring the system

36
The following enactments were hurriedly passed by the Parliament to effectuate the new
programmes. The Local Government (Urban Authorities) Act, 1982 (Act No. 8 of 1982); The Local
Government (District Authorities) Act, 1982 (Act No. 7 of 1982); The Local Government Service
Act, 1982 (No. 10 of 1982).

28decentalisation.ret
Dr. Ringo W. Tenga Page 11 of 20 Cornell World Food Day Paper

of local governance to a level of acceptability. But there are still disturbing

signals which indicate the state is not serious at what it is doing. A glaring
example is the Land Question in Tanzania.37

Briefly, Prof. Fimbo has analysed the functions of local governments in the
allocation and control of land use in the rural areas of Tanzania. In the study
he comes to a firm conclusion the state is predominant in this area and that “as
far as planning for agricultural production is concerned, there is little, if any,
popular participation by peasants.38 This fact was confirmed by the
Presidential Commission of Inquiry into Land Matters appointed in 1991 and
headed by Prof. Issa G. Shivji, a reknown Marxist scholar. (For convenience
the Commission shall be referred to as the Shivji Commission Report or, in
short SCR). The wider-ranging research and visits made by the
Commissioners across the country produced a fair evidence on the state of the
land question in Tanzania by 1992.

Five problem areas were identified:

(i) pervasive insecurity of land tenure;

(ii) the radical title vesting in the executive arm of the state by (a)
declaring of all lands as public lands and (b) by vesting the control and
administration of ‘Public land’ nominally in the President;
(iii) lack of openness, transparency and participation in the administration
of land;
(iv) lack of accessibility finality and certainly in the adjudication of land
rights and disputes.

As observed and analysed elsewhere the SCR observed that the total effect of
these problems was to produce fear amongst landholders, especially villagers,
that their land was “under serious threat of alienation, expropriation and
encroachment.” The SCR gave recommendations on land tenure reform
centred on two (2) major areas, i.e. land tenure reform (areas (i) and (ii)) and
recommendation on the structuring of the institutional set-up in
administration, allocation and adjudication of land (areas (iii), (iv) and (v)):39

4.1 Land Tenure Reform: Participation and Equity

The SCR envisaged this to be a question surrounding the non-participation of

the larger majority of the Tanzanian citizens in the ownership and control of
land. In addressing the issue of involving the ordinary occupiers of land in this
process not only institutional changes were necessary but “a feasible
alternative of organizing the land tenure system” was addressed. A significant
37
See generally Fimbo, G.M. 1992 Essays in Land Law Tanzania [Dar es Salaam University
Press, 1992]
38
Fimbo, G.M. “The State and Peasantry in Tanzania. A Study of Agrarian Law and
Administrative Institutions” in Fimbo, ibid. at pp. 22-46.
39
The following presentation has been detailed in a paper by the Author entitled “Processing
a Land Policy: The case of Mainland Tanzania” Paper presented to the Partnership Africa
Conference (25-27 June 1997) Stockholm.

28decentalisation.ret
Dr. Ringo W. Tenga Page 12 of 20 Cornell World Food Day Paper

recommendation was that of divesting the radical title from the President, and
consequently from the state executive, and vesting it with the people’s
representatives. To achieve this the SCR proposed that all land be divided into
National Lands and Village Lands. A National Lands Commission (NLC) be
created under which a Board of Land Commissioners (BLC) shall be vested
with national lands in trust of the Tanzanian citizens.

The village lands would be held by the Village Assemblies which are the
representative organs in all villages in rural Tanzania composed of all adult
members of the village. In assessing the report Prof. Shivji has recently
written:

“The central recommendation however, was undoubtedly

the divestiture of the radical title and delinking of land from
the executive and vesting of village land with Village
Assemblies. This recommendation is the most fundamental
one and runs through all the more detailed
recommendations of the commission. Admittedly, this would
have some significant impact on the organization of the
state structure.40

Yet following the publication of the report the government issued an official
National Land Policy (1995), hereinafter NLP, that repudiated this
recommendation. In its earlier drafts its authors argued that to detach the title
from the President is “just like making him and his government beggars for
land for implementation of government development policies and projects”.
The recommendations of the SCR are central to equity and democratic
governance as it has been argued elsewhere, in so far as they aim at
democratizing "eminent domain" and at the same time vest ownership in the
people.41 There is nothing wrong at all if the President has also to apply to the
citizen's bodies for land, be it for public interest or otherwise. If citizens
understand their state they will also understand exigencies which require
compulsory acquisition of land.

The other significant reforms proposed by the SCR at the level of land tenure
were that customary titles needed to be concretized in certificates of title. The
customary certificate of title (“Hati ya Mila ya Ardhi”) was to replace the old
“proof of use” title. A process of popular adjudication was recommended and
judicial confirmation in case of dispute provided. The customary title would
be essentially a derivative right grantable by the village assembly which is the
“owner” of a general title ‘Certificate of Village Land’ which certifies the
boundaries of the village. Decisions concerning land were to be made at the
40
I.G. Shivji, “Contradictory Perception on Rights and Justice in the Context of Land Tenure
Reform in Tanzania” (1996) Paper presented to TAWLA Workshop on the Land Bill (3-5th March,
1996) cf: Shivji, IG and Wilbert Kapinga “Implications of the Draft Bill for the Land Act” paper
presented to the Consultative Conference of NGOs and Interested persons on Land Tenure Reform
Dar es Salaam 15-16th May, 1997 organised by Land Rights Research and resources Institute (Haki
Ardhi)
41
Tenga, R.W. “Notes on a Report Entitled: The Implications of the Regulation of Land Tenure
(Established Village) Act 1992 for Peasant Land Tenure Security and Natural resources
Management and Conservation; by the Land Tenure Group, UDSM, June 1993 (Mimeo. UDSM).

28decentalisation.ret
Dr. Ringo W. Tenga Page 13 of 20 Cornell World Food Day Paper

village assembly’s general meeting of all adult members of the village. The
dispute processing mechanism was to be in the hands of an Elder’s Land
Council which was to administer a village land registry. Outsider’s would be
entitled to get customary leases with a periodic limit of 10 years. Whilst intra-
villagers dispositions were to be allowed those with outsiders were to be
proscribed subject to the consent of the village assembly. Assignments of
matrimonial property within the village was to be subject to spouse consent.
The National Lands Commission was to administer the granted right of
occupancy as existing but the allocation process was to be elaborate involving
local communities through District Land Committees and Urban Ward Land
Committees. The grant finally must be certified by the Land Circuit Courts.
Shivji’s Commission went to great length to assure that the stakeholders of
land participated in the process.

The gist of land tenure reform according to the SCR is to democratize the
allocation, administration and disposition aspects. In terms of tenure security
the formalization of the customary title, grounded in a popular process, was
expected to do away with insecurity of tenure to the large majority of citizens.

4.2 Restructuring the Institutional Set-Up in Administration allocation and

Adjudication of Land

The restructuring of land administration which was to radically transform the

way the interventionist state worked in relation to land tenure was to divest the
radical title from the executive and vest it in the National Lands Commission
(NLC) which was accountable to Parliament. The establishment of the Board
of Land Commissioners (BLC) working under the NLC was to change
completely the hitherto structure.

The other critical recommendation was that relating to the system of dispute
processing or what Prof. Shivji calls “administering land rights/justice”. The
existing machinery was seen as inefficient, illegitimate and unjust. The SCR
recommended a system of traditional Council of Elders (Baraza ya Wazee)
which could command legitimacy and respect. Above these were to be the
Circuit Land Courts presided by a professional magistrate with a jury-like
panel of elders. Appeals from this would lie to the Land Division of the High
Court where the presiding Judge would sit with a panel of elders. The target
here was to incorporate the system and perceptions of the ordinary Tanzanian
in the dispute processing system so as to gradually do away with the “dual”
system of land allocation: customary law for “natives” and statutory law for
“non-natives.”42

4.3 The National Land Policy 1995 (NLP)

It is at this stage now that the Bureaucrats came in firstly to formulate a

General Land Policy and secondly to draft a Land Bill presumably based on
the recommendations. The NLP is presented in a 42 page booklet which is
prefaced by the Minister’s statement that NLP incorporates the Governments’
position on the Shivji’s Report; Recommendations of the National Workshop
42
Shivji (1996) pp. 19-25.

28decentalisation.ret
Dr. Ringo W. Tenga Page 14 of 20 Cornell World Food Day Paper

on Land Policy at Arusha Jan. 16th - 18th, 1995; and comments from the public
and mass media. The guidelines in the policy were to give substance to the
Governments’ development objectives “At the same time it is being ensured
that the tried and tested juridical basis on which existing land rights and
existing patterns of community order are regulated will remain intact.”
(emphasis added). With this disclaimer the NLP went on the cut the whole
pro-people learning of the SCR.

Of the 13 factors listed for necessitating a NLP about 7 are on land markets,
prospective investors, land demand, and land value issues: matters dear to
privatization processes of the World Bank and IFIs.43 After stating the
objectives of NLP the document deal with the subject in 4 major areas: (a)
Land Tenure and Administration (covering Land Tenure and Land
Administration); (b) Survey and Mapping (Survey, Village Demarcation,
Mapping, and Land Information Systems); (c) Urban and Rural Land Use
Planning; (d) Land Use Management. The NLP’s policy directives completely
sideline the SCR recommendation on divesting the critical title from the
executive. It agrees however that land should be a constitutional category.
Further, it is not the Village Assemblies that will administer land in villages as
the SCR recommended but Village Councils i.e. the executive at the village
level. At the level of tenure the NLP agrees with the SCR that the right of
occupancy system be retained; recognizing the statutory right of occupancy of
not more than 99 years and an unlimited Customary Title. The latter shall be
confirmed by a Customary Right of Occupancy Title (Hati ya Ardhi ya Mila)
and would be issued by the Village Council and registered at the
corresponding District Land Registry;44 not the Village Registry as
recommended by the SCR. Obviously the custodians of the Village land Titles
cease to be Villagers themselves but District Officials handling a District
Registry.

The chief administrator of land shall be the Commissioner for Lands and shall
appoint officers to administer land other than village land. Village land shall
be administered by Village Councils. On access to land all citizens were to
have equal access to land, but foreigners shall only have access through the
Investment Promotion Act and would not be allowed to acquire customary
land.45 Women’s access to land is guaranteed although the law governing
inheritance “will continue to be governed by custom and tradition.”46 Further
that ownership of land between husband and wife shall not be the subject of
legislation. On land utilization and protection of sensitive areas provision is
made for “special areas” for investors, land ceilings, anti-speculation and
environmental protection. The NLP is full of contradictions when it comes to
express policy guidelines on disposition. However, the Draft Land Bill now
presented overcomes these vague statements - the draftsman giving himself
extraordinary review powers when it suits him.

43
Donaldson, David J. and Wagle, Dileep M. Privatization: Principles and Practice. IFC
Lessons of Experience Series. (WB, Washington, 1995); and Bouin, Olivier, Privatization in
Developing Countries: Reflections on a Panacea Policy Brief No. 3, OECD, 1992.
44
4.1.1 (ix) p. 10
45
4.2.4. pp. 11-12
46
4.2.6. pp. 12.

28decentalisation.ret
Dr. Ringo W. Tenga Page 15 of 20 Cornell World Food Day Paper

The powers of revocation and acquisition of land are retained, however, since
the principle of land value is recognized the consequent principle of
compensation which is fair and payable promptly is also recognised. It
provides further for a system of land registration for statutory and customary
titles. On dispute settlement the NLP is in partial agreement with the SCR. It
states the machinery should start from “Mabaraza ya Wazee ya Ardhi” (Elder
Land Council) to quasi-judicial bodies at the district, regional and national
levels with appeals to the High Court on points of law. 47 On village titling the
NLP does not give a coherent directive. Finally, on land use management the
NLP gives a significant policy statement on rangelands and livestock
conflicts; and also on conflict of land uses in preserved areas such as game
parks. On environmental protection statements are made to protect game
areas, wetlands, the coastline, fisheries and hazard lands.

Debate over the NLP was not sharp as what was awaited was the legislation
which would come out of it. Some of the interested parties took exception to
certain portions of the NLP in its preparatory stages e.g. women groups,
pastoralists through their NGOs, and that was all.

4.4 Draft Land Bill [DLB].

That the processing of the Draft Land Bill (in short DLB) is externally based
is clear to all those involved. It is donor - funded and carries a donor - agenda
for markets, privatization and the creation of a conducive environment for
investors. G.M. Fimbo summarizes these realities when he writes:

“What cannot be masked is that the World Bank and the

IMF are at the center of the stage. It is not accidental that
in 1991 a Presidential Commission was appointed. Its
expenses were met from external funds and the printing of
its report was similarly funded. The Seminar on National
Land Policy held in January 1995 was also similarly funded
by a donor and so was the publication of the National
Policy (NLP), 1995. On approvals of dispositions the NLP
significantly echoes the World Bank position. “The consent
of the Minister or his appointed officers is not necessary for
market transfers to take place.” Now the U.K. Overseas
Development Administration has come in to complete the
task of assisting in drafting a new land code of (or for)
Tanzania. The ODA has provided both funds and a
consultant, Professor Patrick MacAuslan of Birbeck
College, University of London”.48

Prof. MacAuslan has produced a veritable document entitled “A Draft of a

Bill for the Land Act” containing 262 Sections in 15 parts with 4 Schedules at
the end.49 The Draft was also reviewed at the 2nd National Land Workshop at
Arusha where the input of the Tanzanian Advisory Support Group, led by
47
4.2.25. pp. 21.
48
G.M. Fimbo, “Land Tenure and Land Relations: Restatement or Reform through Case
Law” (Mimeo. University of Warwick, June 1996).

28decentalisation.ret
Dr. Ringo W. Tenga Page 16 of 20 Cornell World Food Day Paper

Prof. Fimbo, was submitted in a report which was discussed; significantly

Prof. I.G. Shivji was absent.

Prof. MacAuslan has written both in public and workshop memoranda to

justify the methodology used in producing the DLB.50 He finds as a
philosophical guidance to his work in six “inarticulate assumptions” which
underlay the content of the NLP: (a) the overriding role of land as a major
national resource which must be used and managed in the national interest; (b)
the primary importance of providing for security of tenure and title to all
citizens; (c) the need for transparency and accountability in the exercise of
public power over land; in terminology well known to lawyers, for openness,
fairness and impartiality in the public administration of land; (d) the need to
create the conditions for the operation of an efficient and equitable land
market; (e) the need to bring about a greater involvement of the citizenry, both
directly and through their representatives, in the management of land; (f) the
importance of providing an appropriate Tanzanian legal framework for, and
mechanisms for dispute-settlement and the redress of grievances in relation to
land management. These in turn point to the necessity of a detailed land law
which details powers of land officials and the manner they exercise those
powers. It also necessitates to detail steps that must be taken for a person to
obtain rights in land, effect transactions and how to take action in case of
deprivation of landed interests or rights.

Consequently, the DLB covers nine [9] key areas: (1) The central role of the
Commissioner of Lands, (2) The role of civil society and outside involvement
in the implementation of the law; (3) The protection of village land and the
national interest; (4) Women’s rights to equality of opportunity to obtain land;
(5) The operation and regulation of the land market; (6) Village land
administration; (7) Pastoralism; (8) Validating Informal Tenure Transaction;
and (9) A Tanzanian common law of land. These issues also cover the central
features of the land regime/policy which characterised colonial and post-
colonial land tenure.51

First, the DLB tackles the issue of a dual system of tenure by recognizing by
statute customary titles. Clauses 5 and 6 of the DLB provide for how Village
Land is to be secured. Part III of it dealing with the “Classification and Tenure
of Land” gives equal status to the hitherto unequal categories. The incidents
of a Customary Right of Occupancy are detailed.52 And under Part VII Village
Land is categorised in detail. MacAuslan notes that Part VII “is arguably the
heart of the Bill.”53 Whilst the DLB is in agreement with the NLP and SCR
that village land should be administered by village authorities the DLB

49
The Draft is prepared for the Ministry of Lands, Housing and Urban Development, URT,
under an ODA Contract August, 1996.
50
MacAuslan P. “Making Law Work: Restructuring Land Relatives in Africa Third Alistair
Berkeley Memorial Lecture, London School of Economics (30th May, 1996). Also MacAuslan P.
Presentation “On a Draft Bill for A Land Act” 2nd National Land Workshop, organised by MLUHD,
Arusha, Nov. 1996, and “Clause-By-Clause Commentary of A Draft Bill for the Land Act prepared
for MLHUD” Dec. 1996.
51
Tenga, ibid., “Land Policy”.
52
Clause 23 of DLB.
53
MacAuslan, Clauses to Clause Commentary; Ibid. P. 32

28decentalisation.ret
Dr. Ringo W. Tenga Page 17 of 20 Cornell World Food Day Paper

emphasized that this function be exercised by the Village Council on a

professional basis. Hence this part is concerned “to set out the legal
framework for the exercise by Village Councils and Officials of their powers
over land.”54 It is here that the DLB has a very different view of democratic
management from that of the SCR which gave all powers to village
assemblies constituted of all adults in a village. At times Prof. MacAuslan is
even dismissive of popular management:

“Whatever might be the theoretical case for mass

democracy, it is not practical. Village Assemblies consist of
all adults in the Village; is it really conceivable that such a
body could administer Village lands? ... The Bill in other
words does not subscribe to the thesis of ‘the noble
peasant’; left alone, peasants will always act for the local
common good.”

Thus the DLB aims basically at facilitating the growth of good land managers.
MacAuslan argues that if village land management is treated under different
assumptions e.g. mass control, simpler titles, simple procedures etc., the
colonial duality would be maintained. One sees clearly that the abolition, to a
large extent, of the duality in the inner structure of the tenure system is a
positive development and the DLB achieves this. The open issue is whether in
land management terms it is the village assemblies which are better than
village councils. Obviously a technocratic solution, of the decentralisation
era, is taken to be a much more efficient answer to the problem.

The second feature of the pre-1992 land policy was stated as “security to land
is dependent on proof of use”. This principle is supported by the DLB, the
NLP and the SCR. The definition of the granted right of occupancy is
grounded on “occupation and use”,55 and revocation of the title is largely due
to breach of “use” requirements.56 Revocation of title in public interest is
abolished due to the NLP observation that it has hitherto been misused. The
customary right of occupancy is also subject to use conditions.57 Breach of
those has penal consequences which are different from those of the granted
right of occupancy.58 Failure to follow by-laws is taken to be failure to abide
with conditions.59 Definitely this is a problematic provision due to the fact
that it hacks back to the notorious minimum acreage bye-laws of the colonial
past. Whilst the SCR recommended revocation in cases of breach for land
under village title the DLB provides for other remedies lesser than revocation
such as supervision orders or temporary assignment of the customary right of
occupancy.60 The DLB’s approach is certainly positive taking into account
that the customary title is indefinite and it is usually a grant to a person and his
heirs in perpetuity.

54
MacAuslan Clause to Clause” p. 33.
55
Clause 37 and 38
56
Part 4 (4) Breach of Conditions of a Right of Occupancy Clauses 47 to 53.
57
Clause 76
58
Clause 86-96
59
Clause 86.
60
Clauses 91 and 92

28decentalisation.ret
Dr. Ringo W. Tenga Page 18 of 20 Cornell World Food Day Paper

The third feature of the pre-1992 land regime/policy was its anti-
commoditisation stance. Whilst the NLP is not clear about this, and at times
contradictory, the DLB is clearly pro-commoditisation in land matters. Clause
39 provides for the basic thrust of the DLB: No consents for dispositions are
needed unless specifically required by the Act. The system of
consents/approvals for even petty transactions is done away with; only
substantial dispositions would require consents.61 If there shall be unjust
transactions then it is Land Officers who are given supervisory powers,62 and,
also the Courts.63 The issue of the role of the Commissioner for Lands in
overseeing “just” and “unjust’ transactions was brought to issue at the 2nd
Land Workshop. It appeared as if the executive was taking on functions
beyond it. Officials under the Commissioner were to provide counselling to
the public and how to defend the “weak” etc.64 The Support Group was of the
view that courts and lawyers should be left to do this job. Also given the level
of corruption, which is said to have strong roots in land administration, it is
difficult to see how the same “accused” administrators would come out in
defence of the economically disadvantaged.

Finally, the fourth feature of the pre-1992 land regime/policy was shown to be
over-arching interventionist role of the state’s executive arm. The DLB
confirms this concept and strengthens it in several ways. The critical title of
the President is practically taken as an article of faith: “the Bill spells out the
role of the President as trustee of the land of Tanzania. The whole of the rest
of the Bill is based on this fundamental principle.”65 Therefore the whole idea
of a National Land Commission as a trustee of the land as suggested by the
SCR is thrown overboard. This is a critical issue which needs revisiting once
again. If such principles as openness, fairness, impartiality and security must
have any meaning at all then adequate participation of the citizenry in the
administration of their most valuable asset, land, must be concretely realised.
By making the executive the sole arbiter and administrator of land can that
objective be achieved? Here lies the gist of Prof. Shivji’s argument:
democratization of land administration can only be managed through the
participation of communities at village levels and national levels 66. In the
name of the “need to create the conditions for the operation of an efficient and
equitable land market” the author of the DLB misses Prof. Shivji’s and SCR’s
point.

The rest of the DLB deals in a variety of ways to concretize the power of the
executive. Issue No.1 in MacAuslan’s presentation is the central role of the
Commissioner of Lands in the whole process of land administration.67 The
powers of the Commissioner are so extensive that at the Workshop it was felt
the Minister for Lands, the other powerful executive in the Land Ministry, was
61
Clauses 39-44
62
Clause 41
63
Clause 43
64
MacAuslan, Clause to Clause, p. 26
65
MacAuslan “Clause to clause” p. 12, Clause 4.
66
Shivji, I.G. “Grounding the Debate on Land: The National Land Policy and its
Implications “Paper presented at workshop on the NLP held at British Council Hall, Dar es Salaam
on 3rd April, 1996. Organised by LARRI-Haki Ardhi.
67
Clause 1-15.

28decentalisation.ret
Dr. Ringo W. Tenga Page 19 of 20 Cornell World Food Day Paper

orphaned.68 At every stage of land processing the Commissioner has power to

intervene, power over consultative process, power to recommend revocations
and acquisitions, etc.

The fact that the Executive has had over-arching influence in the formulation
of the new land law is all too clear. But being donor driven it had to take the
interests of the donors. This review is undertaken to bring to the fore the
already presented critique of participatory schemes. The Land Tenure Reform
process has actually cut out the disadvantaged. One would then ask how can
Equity be attained?

5. Conclusion

Colleagues and eminent scholars who have analysed closed the African
Nation-State have made serious analyses point at the way forward. It is
difficult to sum up here the whole debate but the following seems to be the
major core recommendation which are emerging.69

First, it is essential to build a national democratic system in Africa which must

have a built in coexistence between central and local institutions. A
redefinition of citizenship is essential in order to break the “antipathy between
society and the state.”

Second, the question of ethnicity and religion must be confronted in a manner

that would allow cultural pluralism.

Third, building a decentralised “even non-centralised” democrats system

would assure the survival of democracy.

Fourth, as asserted by Olukoshi and others the necessity of an endogenous

“social contract” for Africans with their rulers is necessary. Constitutional
reform processes involving all the stake-holders, should be the clarion call for
the future. Without it no governance, no equity, or democracy has a future in
Africa.

-----------------xxx-------------

68
Clause 9 sets a face-saving net for the Minister
69
Oluwu, Dele 1993, “Beyond the failure of the Centralised State in Africa” Paper presented
to the Regional Conference on “Local Self-Governance, for Peace and Security” August 30-Sept. 4,
1993 Kampala Uganda. [Convened by FES, IDS (Dar) etc.

28decentalisation.ret
Dr. Ringo W. Tenga Page 20 of 20 Cornell World Food Day Paper

28decentalisation.ret