Wildlife conservation legislation unfriendly to local communities

Arusha. Wildlife Conservation (WMA) regulations were made pursuant to sections 31 and 121 of the Wildlife Conservation Act, 2009 (Cap 283).

The law has replaced and repealed the Wildlife Conservation Act, 1974. During the enactment of the new law, several criticisms were levelled against it by various stakeholders like local tour operators, local communities and civil society organisations.

The criticisms mainly focused on natural resources and their management, tourism and the engagement of local communities in sharing equitably the wealth obtained from wildlife as an important resource.

Compared to the Wildlife Conservation Act, 1974 and the regulations made there under, there were notable reforms made, which are now reflected in the new Wildlife Conservation Act, 2009 and its regulations.

Among the notable changes, include the proposed establishment of the wildlife authority aimed at improving and strengthening conservation and protection of wildlife in Tanzania, increased share of local communities’ rights and interests in management and protection of wildlife through improved percentage of sharing of income (75 per cent) from wildlife activities in the WMAs such as block fee, which was 65 per cent before the implementation of the new law. These are some of those notable changes and reforms introduced by the new wildlife law and its regulations.

However, there are also some strange provisions under the new law and its regulations, which the author discusses in this article. Among these strange provisions include, restrictions on human settlements and grazing in game controlled areas as provided under section 16 of the new Act, which apparently are part of village land as provided under the Village Land Act, 1999 and the Land Act, 1999.

Game controlled areas in the repealed wildlife law did not have this restriction, so local communities enjoyed living and grazing without any restrictions or seeking permission from any government authority.

The new restriction imposed under the new law creates not only a dilemma on the lives of local communities, but also raises a serious conflict of laws between the Village Land Act No 5 of 1999 and the Wildlife Conservation Act No 5 of 2009.

There is now conflict between local communities and the Ministry of Natural Resources and Tourism regarding whether the game controlled areas are village land. It is generally a question of interpretation, but there are until now about two main schools of thought, which may attempt to help solve this dilemma.

The first school of thought is the interpretation of laws itself, which is one of the serious problem noted, that is between the land laws specifically the Village Land Act, 1999 and the Wildlife Conservation Act, 2009. It is a canon principle of land law, that where there is a conflict of laws, between land laws and other laws, such as the wildlife law in this case, on matters of land, it is the land law, which becomes supreme on matters of land.

It is, therefore, clear that where in the case of game controlled areas, whereby the majority of them are found in village land with the new restriction on human settlements and grazing as imposed by the new wildlife law, going by this interpretation, villagers are winners and game controlled areas will then die forthwith.

This type of interpretation maintains that the minister responsible for natural resources neither has power nor mandate to impose any restriction on people’s land because the land itself is not a protected area. That is by virtue of restricting human settlements on game controlled areas is the same as saying game controlled areas are no longer viable projects into villages land, thus they must die as per section 16(5) of the new wildlife law.

It is also important to mention that villagers may not, however, celebrate as this allows a possibility of converting village land into conservation and the government has that mandate under the land law to do so.

It is not the intention of this author to discuss the powers of the President on land in this article, but it suffices to say that the President enjoys powers to invoke a procedure provided for under the Land Law Act, 1999 to have land converted from one category of land into another.

The second school of thought is the interpretation of the provisions of the Wildlife Conservation Act, 2009. It is clearly stated, that the minister responsible for natural resources and tourism, will within one year after the law is operational (which is since July 2010) cause the evaluation to be done to determine continuation of the game controlled areas for purposes making a new list of game controlled areas to be gazetted in order to separate the land laws from the game controlled areas. In this regard, since the wildlife law became operational in July 2010, the minister should have made by July 2011 the evaluation as required and course a new list of game controlled areas to be gazetted.

The wording of this section, which directs the minister and imposes a mandatory obligation as the use of word “shall” means “must”. The minister, as a mandatory requirement requires, should have done evaluation in July 2011. What does failure of this obligation means in law?

First, failure by the minister to cause proper evaluation of the game controlled areas within time to separate the same from village land simply means game controlled areas no longer exist, thus communities must continue as normal as the restrictions under the wildlife law on human settlements and grazing should not be a problem.

Since precondition of game controlled areas is to be de-gazetted, communities are advised to seek court intervention to have the minister compelled to fulfil the mandate under the law.

The author of this article strongly subscribes to these two schools of thought and their interpretations as stated above. Now so, what is the fear or dilemma?

In 2013, the Ministry of Natural Resources and Tourism issued a press release regarding game controlled areas in Loliondo, which involves about 4,000 square kilometres of village land. In this press communication, the minister, then Khamis Kagasheki attempted to introduce a third school of thought as will be discussed.

Kagasheki’s school of thought is simply new and does not fall within the two schools of thought as he attempted to introduce a new approach by declaring 1,500 square kilometres out of the total 4,000 square kilometres making Loliondo Game Controlled Area and claimed that the 4,000 square kilometres of land has never been village land, but protected thus a move according the minister to give 2,500 square kilometres of protected land to villages was not only a favour, but a milestone achievement for the part of local communities.

According to Kagasheki, 2,500 square kilometres of former Loliondo Game Controlled Area, was generous support and love he claims for Maasai communities otherwise the land does not belong to villages. Criticisms against Kagasheki’s school of thoughts are in two folds.

The first is that there are indeed queries in the minister’s statement, if at all, it were correct. Does the minister for Natural Resources and Tourism have powers over village land, the answer is certainly NO.

The second is that, if the minister’s statement is correct and that the land is a protected area, when was it ever transferred from village land and the fact that local communities have been living in the same land for over 50 years.

In these seemly three schools of thoughts, without dealing on whether or not, which one is most correct, as discussed above, the reality of the matter is that local communities remain stranded, with a big dilemma and fear of being evicted from their ancestral land in which they have lived for ages and continue to date. The fear among local people and civil societies in Loliondo has caused havoc as reported in various local and international media outlets.

Local people made several attempts calling the attention of the Prime Minister to intervene and rescue the situation. The Prime Minister’s intervention by paying a visit to Loliondo has calmed the situation, which until now, the situation has calmed down and local people have since then remained calm after the Prime Minister’s visit. This is clearly another dilemma, whether or not local communities in Loliondo have found solutions to their land related problems.

It is the author’s view that there are about two solutions to this problem, that is political will of the leaders in government, so as it has been, following Prime Minister’s intervention, as he did. Local communities and civil societies must push for a more concrete solution because it is difficult to rely on this political will only.

Second, which is more reliable is a court’s intervention, that is local people and civil societies must seek the court’s interpretation regarding the existence of game controlled areas in relation to local people’s livelihood and customary rights over their village land.

This will not only create a precedent or correct interpretation of the provisions in conflict, but if done in favour of the communities, which is more likely, government officials are restrained from coming up with unwarranted and local community-unfriendly interpretations such as one of Kagasheki’s.

The author is a legal advisor and head of Advocacy for Ujamaa Community Resource Team (UCRT).