PROPERTY GUIDE: Foreigners’ right of access to land in Tanzania

Following the East African Community (EAC) Common Market on July 1, 2010, land is one of the major concerns or points of disagreement that causes fear of additional competition for land resources from citizens of other partner states during negotiations on the East African Community Common Market. Other points include free movement of people and the right of residence of which Tanzania has a different approach on that.

Right to access land under EAC Common Market perspective

The right to access and use land and premises is enshrined under Article 15 of the Common Market Protocol, whereby partner states agreed to allow its citizens to use land and premises under the right of establishment and right of residence. This means a national of an EAC partner state, who is a non-national in the other partner state has first to fulfil the conditions of legal residence/or establishment before he is considered for the right to access land. This is when one’s right may be realised. This is the theoretical position on how a non-citizen from any EAC state can access land in Tanzania under the EAC Common Market perspective.

Access to land under existing Tanzanian laws

In terms of the existing land policies and laws, a non-national may access land for investment purposes only. The National Land Policy, 1955 as revised in 1977 provides in paragraph 4.2.4 that:

- A non-citizen shall not be granted land unless it is for investment purposes under the Investment Promotion Act, which was replaced by the Tanzania Investment Act, (Cap 38 R.E 2002).

- Non-citizens and foreign companies will not be allowed to acquire land through transfer or purchase of customary land.

- Non-citizens and foreign companies can only acquire land in accordance with the law. The transfer of customary land rights by citizens to non-citizens will be prohibited.

The Land Act, 1999

Section 20 of the Land Act, 1999 provides that “for avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzanian Investment Act, 1977”. Section 3 defines foreign investor in the case of a natural person as “a person, who is not a citizen of Tanzania, and in the case of a company, a company incorporated under the laws of any country other than Tanzania in which more than fifty percent of the shares are held by a person who is not a citizen of Tanzania, and in the case of partnerships, means a partnership in which the partnership controlling interest is owned by a person who is not a citizen of Tanzania.”

According to this section, land is normally granted or allocated to the Tanzania Investment Centre and then investors are granted derivative rights thereto by the Tanzania Investment Centre.

The essence of the Land Policy and the Land Act is to restrict the ownership of land in Tanzania by non-citizens except for investment purposes only.

It should be noted that the Land Act of 1999 was put in place to implement the National Land Policy, 1995 and the moment it was passed no one thought of the East African Community nor the East African Community Common Market in mind. Therefore, it is clear that the Land Act with the intention of drafters contradicts the East African Community Common Market, which provides for the rights of establishment and right of residence.

Access to land under the rights of establishment and residence

The right of establishment is provided under Article 13 of the Common Market Protocol. It entitles nationals of the partner state to pursue economic activities in the territory of another partner state. It also allows a citizen, who is in the territory of another partner state to join a social security scheme in that particular state in accordance with the laws in that state.

The right of residence as provided under Article 14 of the Common Market Protocol relates to persons from other partner states, who have been admitted to the territory of another country as workers or self-employed to be entitled to residence in the host state provided that they are employed or self employed in accordance with the respective national policies and laws of the hosting nation.

The right of residence and establishment may be limited in terms of public policy, public security and public health. Additionally, access to land will only be to the extent of enabling enjoyment of the right of establishment or residence and not otherwise.

Tanzania has the right of occupancy system unlike other countries that have freehold tenure. The right of occupancy is a periodic land occupation system tied to development conditions. In this regard all land in Tanzania is vested in the president as a trustee on behalf of the beneficiaries who are citizens.

The occupation of land is proved through the use of it. That is why non-nationals are given access to land if they are going to use it for investment purposes or they may exercise the right of residence or establishment as explained above.

In this sense, non-nationals are not denied land in Tanzania, even nationals if they don’t use or develop their allocated lands their titles may be revoked, unlike other jurisdictions, where land is treated like any other commodity. Therefore, the East African Community Common Market should not be perceived as giving non-national exclusive rights of enjoying land in the same way as nationals do. Land is, therefore, made available to achieve the overall objectives of the East African Community Common Market.

The author is an advocate with ABC Attorneys Capital Plaza, 2nd Floor Mwai Kibaki Road, Dar es Salaam. www.abcattorneys.co.tz