Throughout Sub-Saharan Africa, land is a fundamental issue for economic development, food security and poverty reduction. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. It is governed by rules which define access, use, control and transfer of land.
Land tenure is very crucial for development. One of the lessons learned from a recent research on land tenure was that; “The countries that have invested in the technical and institutional infrastructure required for efficient and equitable land tenure administration, and that have been in the forefront of ensuring property rights for both men and women, have developed much faster with a much higher level of food security, health and welfare.” This statement shows how instrumental land tenure is in development.
There is no express International framework on land tenure. According to Thilo Marauhn, this “…is less surprising if one takes into account that, as a matter of customary International Law, States enjoy sovereignty over natural resources within their territory, which obviously includes the land within their boarders.”
At the continental level, land tenure is portrayed as either customary or statutory. The former is largely unwritten and based norms and practices of the given country or society. The latter is documented and founded on written laws and is usually vested in government agencies.
In the East African context, Partner States have dissimilar land policies and laws, and land management systems designed by traditional and colonial systems at independence. This is tricky because “…Without a harmonised system, is difficult to operate,”
Uganda and Tanzania Compared
In Uganda, all land belongs to the people and shall vest in them according to the land tenure systems provided for in this Constitution. Article 237 (3) thereof and Section 2 of the Land Act, Cap 227 provide for the different tenure systems in Uganda.
In Tanzania, the Constitution is silent on the issue of land. However, Section 3 (1) (b) of the Land Act, 1998 declares all land to be public land vested in the President as a trustee on behalf of all citizens. The land is categorized as general land, village land and reserved land.
A quick glance at the legal positions on land tenure in the two countries of East Africa clearly portrays discrepancies in the manner in which land is held.
The EAC Context
Objective 1 of the Community is to develop policies and programs aimed at widening and deepening cooperation among Partner States in political, economic and social fields. The rationale behind the strategies of achieving these Objective as stated in Article 5 (3) (a, b,e and f) inter alia appears to be the need to harmoniously improve the standard of living of people in member states, protect the environment, promote peace and security in the region. Under Article 6 of the Treaty, some of the Fundamental Principles of the Community include; peaceful co-existence and good friendliness, good governance which entails the promotion of human rights (land rights inclusive) and equitable distribution of benefits. Chapter 17 of the Treaty provides for free movement of persons and labour.
The East African Common Market Protocol states that the “Partner States agree that access to and use of land and premises shall be governed by the national policies and laws of the Partner States.” To me, this can only offer a short-term and a face value solution to this looming threat because it falls short of fitting into the wider context of integration and completely disregards the harsh reality that land is central to all the stages of integration.
Presidents Yoweri Museveni (Uganda), Paul Kagame (Rwanda), Jakaya Kikwete (Tanzania), Mwai Kibaki (Kenya) and Pierre Nkurunziza (Burundi) at the 11th Ordinary Summit of Heads of State during which the EAC Presidents signed the Common Market Protocol (20 November 2009)
Land is a complex issue across all sub-Saharan Africa. In fact, as negotiations for the EAC Federation gather steam, citizens within the bloc remain worried for their land. According to a report, “concerns were raised about differences in land tenure systems of partner states and loss of land due to free movement and rights of establishment within the EAC partner states.”
The different positions in Uganda and Tanzania coupled with “silence” of the EAC laws on this area therefore raise a concern as to whether the member States are committed to advancing the stated Objectives and Principles of the Treaty.
Land tenure determines who can use what resources for how long, and under what conditions.
The Objectives and Principles of the East African Community are geared towards peaceful co-existence and improvement of the standard of life. Resources being one of the sources of conflict world over, it is thus crucial to analyse the preparedness of member States to avert such potential conflicts which relate to land—a crucial resource for economic development worldwide.
To wrap it up, a good land tenure system should be uniform. I opine that for the East Africa Community to advance especially in the economic sphere, then the member states, in compliance with the Treaty, must establish a land tenure system that cuts across the region. This will boost investment and increase agricultural production. It will also ascertain the land rights of the various stakeholders hence minimizing conflicts. It is the harmonious development and peaceful co-existence which accrue from a uniform land tenure system that will result in economic development and unity and subsequently lay a strong foundation for a sustainable Political Federation.