I have just read this scathing editorial from the Daily News: http://www.dailynews.co.tz/index.php/dailynews/1271-blunders-in-sugar-cane-project-are-economic-saboteurs. It has reminded me of a research I did in 2010 on what this editorial sadly albeit strangely refers to as a “simple land dispute” which, in its opinion, was ought to be easily and speedily resolved by the government so as to pave way for the investor’s “mega investment” that would have allegedly “saved the country’s meagre foreign exchange on sugar”. In the spirit of hearing the other side of the story I present below the section from my research report that dealt with the dispute:

3.2 Kilombero Sugar Company Limited

The transition from the ‘nationalization’ to the ‘privatization’ era also enabled Illovo Sugar

Limited of South Africa to acquire part of the previously nationalised Kilombero Sugar Estate in Morogoro region. According to its official website, this happened in 1998. Its latest annual report provides the following breakdown of the percentage stakes acquired: “Illovo’s shareholding in Kilombero Sugar Company Limited represents 55% of the issued share capital, with 20% held by ED&F Man, the London-based commodities group, and 25% by the Government of Tanzania” (Illovo Sugar Limited 2010: 26). Thus, as far as land acquisition is concerned, this case appears as that of Kilombero Plantations Limited in which an investor gets land that is already the property of a public company. However, as the main operator of the farm, its quest for expansion coupled with other nuances has been creating a crisis with a different dimension.

A letter dated 1 February 2005 and referenced KDC/M.40/1 from the then acting District

Development Director directed chairpersons of Namwawala, Mbingu, Mofu and Kisegese toprepare Village Council and Village Assembly’s minutes, in a space of nine days, which shows villagers’ approval of giving land to the company. The letter is titled: “YAH: UMILIKISHAJI WA ARDHI KWA KAMPUNI YA SUKARI (ILOVO) KATIKA MAENEO YA BONDE LA MTO RUIPA”, that is, “TITLING OF LAND FOR ILOVO SUGAR COMPANY IN AREAS WITHIN RUIPA VALLEY”. As the Land Rights Research and Resources Institute (LARRRI/HAKIARDHI) and the Legal and Human Rights Centre’s (LHRC) fact-finding mission team observed in their report, as written by Isaya I. Makoko (2009), it is obvious that this directive required an extraordinary/emergency Village Assembly, a practice which is not procedural in such a case as per Local Government (District Authorities) Act Number 7 of 1982.

It is not surprising then that a year later the Tanzania Investment Centre (TIC) was busy

presenting the ‘success story’ of this investor as a rationale for expansion. In a presentation

entitled Investment Opportunities in the Sugar Ethanol Sector, TIC (2006) commended the

company for increasing its production from 29,000 tons to over 140,000 tons since it started

investing. It also noted that the company was considering an additional $75 million investment to increase production up to 200,000 tons. However, it asserted Ruipa valley actually had 250,000 tons of sugar potential. As far as investment land is concerned, it affirmed that more than 40,000 hectares with potential for both irrigated and non-irrigated sugar-cane production had already been identified and earmarked accordingly. The country has over 88 million hectares of suitable agricultural land, it reaffirmed, of which less than 6% is currently utilized. It capped its rationale with this claim: “With less available arable land, Kenya and Uganda currently import more than 300,000 tons of sugar. With unrestricted preferential access under the East African Community, sugar producers based in Tanzania are ideally placed to serve these markets” (TIC 2006: 3 – 4). Then in a letter dated 18 March 2010 and titled ‘MAANDALIZI YA MILIKI ZA MASHAMBA KATIKA BONDE LA RUIPA’, that is, ‘PREPARATION FOR THE TITLING OF FARMS IN THE RUIPA VALLEY’, the Kilombero District Executive Director (DED) Office informs the Director General of the Sugar Board of Tanzania that the letter of offer has been prepared for the farm earmarked as an industry area for the investor. It also note that the farms earmarked for Illovo Sugar company and a farm earmarked for investors from ‘outside’ were not included in the process so as to wait for a corrective resurvey following complaints from Mbingu Village that the first survey went beyond the project area to include its land. The letter thus concludes:

Kwa kuwa eneo lililoguswa ni lile lililopendekezwa kupewa Kampuni ya Sukari

Kilombero ambalo lina ukubwa (hekta 1976) maalum, marekebisho yake yataelekea

kwenye eneo la wakulima wa nje katika kijiji cha Mofu ambalo nalo litahusika

kufanyiwa marekebisho kwa sababu yanapakana [Since the area covered is the one

earmarked for Kilombero Sugar Company, with special 1976 hectares, the corrective

resurvey shall be directed to the area of outgrowers farmers in the village of Mofu as it

will also be involved in the resurvey because they border each other]

A letter dated 23 February 2010 from Mbingu Village Council and directed to the District Land Officer confirms the village’s complaint. It states that on the basis of the Village Land Use Plan part of its land was wrongly included in the survey of the sugar planting project. To rectify this, as the following title of the letter indicates, the village requested back that area: Maombi ya Kuachiwa Eneo la Makazi na Kilimo Kutoka Mradi wa Miwa (SUDECO), that is, ‘Request to Retain Residential and Farming Area from the Sugar Farming Project (SUDECO). It should be noted that SUDECO stands for Sugar Development Corporation, the then Tanzanian parastatal that was behind the quest to expand sugar plantation in the area during the ‘nationalisation’ era.

In their baseline study conducted three years ago in the district on behalf of HAKIARDHI,

Jackline Mgumia, Bashiru Ally & Emmanuel Mvula (2007) pointed out that the land conflict in the Ruipa valley has its genesis in ‘1984’. SUDECO surveyed Morogoro region to determine the areas suitable for sugarcane plantations. However, it did not start any plantation since those were the times when about 400 parastatals in Tanzania were going bankrupt. The baseline study found out that when the sugar estate was privatized as a joint venture to Illovo, leaving the government with a stake of 25 percent, the same information regarding bounderies collected then were used without resurveying the area to determine whether there were new developments in the land.

However, when Illovo surveyed the area it found out that 6,024 acres were occupied by the

villages of Njagi and Magombera in Mkula and Mchombe Wards of Kilombero District

respectively. Upon valuation in regard to relocation it was determined that it would be possible to compensate the villagers in Magombera. In the case of Njagi it was determined that the compensation would be too costly for the company as those villagers had permanent settlements.

It is this latter situation, they note, that led the government to decide to allocate 1, 976 acres in Ruipa valley to the company instead of relocating Njagi villagers. Even though the company affirmed that the area was suitable for sugarcane it asserted that it was too far from its premises and would thus increase the cost of production. On the basis of this argument, the baseline study documents, it requested the government to allocate it 8,000 acres in the valley so that it can plant sugarcane and construct an industry. This requested acreage, however, included areas claimed by Namwawala, Mofu and Mbingu Villages in the Idete, Mofu and Mbingu Wards in the same district. The processing of this request and the reactions it sparked are sharply captured below:

Ombi hilo lilitumwa wilayani toka Serikali Kuu, ikiitaka Halmashauri ya Wilaya

isimamie upimaji wa eneo hilo na kuwapatia ILOVO eneo husika. Wilaya ilipima eneo

kama ilivyoagizwa na kuwaeleza wananchi juu ya agizo la Serikali Kuu. Wanavijiji wa

vijiji vya Mofu, Mbingu na Namwawala waligoma kutoa eneo la nyongeza na

kuchaguliwa mwekezaji. Wananchi hao walidai kuwa chini ya Sheria ya Ardhi ya Vijiji

Namba 5 ya Mwaka 1999, wanakijiji wana mamlaka juu ya ardhi ya Kijiji na Serikali

Kuu haipaswi kuwaagiza wampokee mwekezaji ambaye hataki kufuata sheria

zinazotawala ugawaji wa ardhi ya vijiji. Serikali Kuu kwa upande mwingine ina mtazamokwamba eneo la RUIPA liko chini ya mamlaka yake kwa sababu lilifanyiwa tathmini na SUDECO. Lakini wananchi wanasema SUDECO haina hatimiliki ya eneo hilo.

Wananchi waliamua kutafuta mwekezaji wao anayeitwa Alhooshom na kumpa muhtasari

wa kupewa ardhi ili aanzishe kilimo cha miwa katika eneo hilo. Halmashauri ya Kijiji

iliamua kwamba ikiwa kampuni ya ILOVO inahitaji ardhi kwa ajili ya kilimo cha miwa

inapaswa ifuate taratibu kwa mujibu wa Sheria ya Ardhi ya Vijiji [The request was sent

to the district from the central government, directing the District Council to oversee

surveying and provide the requested area to ILLOVO. The district surveyed the area and

informed the villagers of the decision of the government. Mofu, Mbingu and

Namwawala villagers refused to give the additional area and rejected the choosing of an

investor for them. These villagers asserted that according to the Village Land Act

Number 5 they have authority over the village land and the central government is not

supposed to direct them to accept an investor who does not want to follow the laws

governing village land. The central government, on the other hand, is of the view that the

area is under its authority as it was valuated by SUDECO and it has a title for it. The

villagers decided to look for an investor by the name of Alhooshom to farm sugarcane in

the area; they gave him minutes approving him to start farming. The Village Council

decided that if ILLOVO needs land to farm sugarcane then it is supposed to follow

procedures stipulated in the Village Land Act] (Mgumia, Ally & Mvula 2007: 33).

Two years later, as LHRC’s (2010) Tanzania Human Rights Report 2009 documents, the trend of arbitrary exercise of powers emerged again. The District Commissioner “for Kilombero was accused of forcing the villagers of Namwawala to move out of their lands to pave way for sugar plantation investment” (LHRC 2010: 127). This accusation was also documented in the print and electronic media. In the case of former, for instance, one newspaper carried these alarming news titles: Kijiji cha Namwawala hatarini kuuzwa kwa mwekezaji: Viongozi wanadi ni Agizo la Rais, wanakijiji waunda tume (Tanzania Daima 27 April 2009). Its subsequent issues thus carried a more sensational news title: Kijiji cha Namwawala Chalipuka: Polisi Watembeza Mkong’oto, Wananchi Wamlilia Pinda (Tanzania Daima 2 May 2009). The former is an alert that Namwawala village is in danger of being sold to an investor whereby leaders are claiming it’s a presidential directive while villagers have formed a commission. ‘Namwawala Village Explodes’ is the direct translation of the latter title with its subtitle noting that police have gone on rampage beating people while villagers are pleading with Pinda – the Prime Minister. It should be noted, however, that other sections of the media, particularly a community radio in Kilombero district, was used in the first place to announce the district authority’s notification of evicting villagers.

In her presentation on the role that the media played in reporting the case of Namwawala, Devota Minja (2010) documents how a team of journalists visited the district. What they observed was an arbitrary use of power. Their attempt to ascertain why the district authority was evicting villagers by force and without compensation proved to be futile as district officials remained mum. Their reportage, it is noted, raised alarm and prompted the Prime Minister to direct the regional authority to resolve the issue. What they reported in the media, the presentation further points out, led to the arrests and framing of those presumed to have divulged information to the journalists. They continued covering the case and collecting the views of villagers. It was only until the beginning of 2009 that the case of these arrestees was struck out in court by the judge.

However, a fact-finding mission team that was dispatched by HAKIARDHI and LHRC in May 2009 was furnished with slightly conflicting versions of the history and scope of the conflict. Backing up their version with map and other documents, district officials told the team that the land under dispute belonged to the government since the early 1970s and it was surveyed by SUDECO in 1976. This is in contrast to what the baseline study cited above indicated. Nevertheless the officials confirmed the claim that the land was surveyed for the purpose of growing sugarcane and allied projects but it was not implemented. They located 2005 as the year in which the plan was revived by the successor of SUDECO namely the Sugar Board of Tanzania (SBT). This revival, they affirmed, involved seeking an investor to implement the sugar projects.

According to the team, two key district offices contradicted each other in regard to the state of ownership. The office of the Development Executive Director (DED) stated that SUDECO/SBT was and still the title holder whilst that of the District Administrative Secretary (DAS) said it was not. However, no official could show any Government Notice (GN) that indicates the area was gazetted as having been acquired by the President, presumably through the Land Acquisition Act of 1967, for the purposes associated with the project. The only proof availed to the team was a map. This map is similar to the one that accompanied the above mentioned letter from the DED to SBT dated 18 March 2010 and, as the team concluded, its validity and legality is questionable.

The Office of the District Land Officer revealed that the net project area was estimated at 9272.54 hectares. This, it was found, make up a total of 62 percent of the whole land of the affected villages. Way back in the 1970s, it was further elaborated, the surveyed area was divided into six blocks, that is, A, B, C, D, E and F which appears in the contentious map referred to above. Since blocks D, E and F were later occupied by people and registered as villages, the office informed the team, SUDECO abandoned them. Hence, it was clarified, the proposed project only cut across 4 villages appearing in Table 1 below which has been adapted from HAKIARDHI & LHRC’s data – Makoko (2009) – from Kilombero District’s Land Office.

TABLE 1: PROPOSED SUGAR PROJECT AREA IN RUIPA VALLEY

BLOCKS VILLAGES HECTARES

 

A Kisegese 863.53

B Namwawala & Mofu 6032.55

C Mbingu & Mofu 2376.46

TOTAL 9272.54

The views of the villages presented to this fact-finding mission team in 2009 corroborated, in part, those presented to the baseline study research team in 2007. Villagers consulted asserted resided in the area since the 1970s. However, contrary to what was said in the baseline study, one that it was only in 2005 that they started hearing about the sugar projects even though they had of the villagers said it is their Member of Parliament (MP) who came with an investor known as Ally Hushum in 2005 and they were asked to discuss his land application but they did not accept this investor though the then MP asserted the project would still go ahead. This outgoing MP is still referred to as part of the problem not least because he is allegedly a member of SBT’s board.

In their joint analysis on the source of land conflicts in Kilombero Districts submitted to the from Namwawala, Mbingu, Mofu and Msolwa Station villages accuses this MP for colluding with district officials in fueling conflicts by using the opportunity provided by the national Tanzania Gender Networking Programme (TGNP) on 23 June 2010 for support, seven villagers investment policy. Therein they claim that ten villages in the districts have been affected by these conflicts since 2003. Apart from the three, these include: ‘Lukolongo, Ikule, Mkangawalo, Kisegese, Chita and Lungole’. In the case of Msolwa Station Village, they assert, its land was grabbed and given to Illovo. They recall that when villagers protested they were beaten and apprehended by the police even though they were not charged in a court of law. The analysis also point out that the houses of some villagers were demolished or burnt. About 13 people were framed and charged in court whereby after four years they don’t know when the cases will end.

 

The seven villagers also point out that on 10 December 2008 three officers responsible for land stated that the President of Tanzania had ordered the transfer of land in Namwawala village to an investor. However, when these villagers followed up on 13 February 2009 by submitting a letter of enquiry to the President’s Office this office could not confirm that such an order or directive was given. A letter, with reference number SAB 110/302/01, from the President’s Office was directed to District Commissioner asking for a confirmation of such an order. In a response, through a letter referenced D40/31/118, the District Commissioner could not to offer such a confirmation. These villagers continued to follow-up through the Morogoro Regional Commissioner and Prime Minister’s Office in letters referenced TM/KJ/NML/02/09 and TM/KJ/NML/01/04/09 respectively. But the issue was unresolved. It is in this regard they sent their request and its attendant analysis, to a consortium of activists in the country through TGNP.

As it has been pointed out earlier and elsewhere, the legal reform of 1999 has not altogetherreformed the land tenure in the Tanzania as it continues to affirm a ‘radical title.’ Thisentitlement still vest all land, commonly known as public land, and its administration in thePresident as the trustee for and on behalf of all citizens in the country and hence it does not repeal the Land Acquisition Act of 1967. This is the Act that seemed to be invoked in the contest between villagers and district officials in Kilombero. Even though section 4(1) of the Village Land Act Number 5 of 1999 empowers the President to transfer – in ‘public interest’ – any areaof village land to any other category of land whereby under the Act the term ‘public interest’ also includes “investments of national interests”, as Nshala (2008) sharply observe, yet as it has been hinted above, so far there is no proof whatsoever that this actually happened in the case at hand.

 

The following legal analysis succinctly sums up what it would have taken for this to be the case:

Part II of the Act empowers the President to a compulsory acquisition of land for use by a

corporation within the community or agricultural development; but subject to prescribed

procedures. There are three stages in the process. The first stage is preliminary

investigation of suitable land for the intended purpose. Under this stage the responsible

organ, among others conducts a survey together with clearing and setting out boundaries

of the proposed land…This is what SUDECO did…The second stage is giving notice of

intention to take the land after the President is satisfied with it. This notice should be

within 6 weeks. This is given by the minister on his behalf…lastly, taking possession of

the land. This is done after the compensation is completed after giving notice as per

Section 7 (1), 8 and Sub-part (b) of the Act above. Generally, procedures under Section 4

(3) (a)-(d) of the Village Land Act, 1999 are not proved to have been followed in

transferring the disputable land. … Stage 2 and 3 above were not fulfilled… Thus, the

validity of the alleged acquisition is also questionable because by virtue of Section 19(1)

of the Act, the President is not compelled to complete the acquisition – he or she may

withdraw (Makoko 2009: 6).

Nevertheless all these invocations of the failure to adhere to the three procedures do not negate the call to amend or repeal altogether the Land Acquisition Act. Nor does it negate the call to do away with its attendant provision in the Village Land Act. Rather, the fact that these villagers occupy, use and even (re)claim their land customarily as allocated to them by their village governments through normal legal procedures affirms all these calls as encapsulated hereunder:

This [Section 4(1) of the Village Land Act, 1999 read in conjunction with Section 4(2)] is

a very dangerous provision which is an excellent opportunity for corruption and self-

enrichment. It allows self-aggrandizing bureaucrats to acquire profitable or well-

resourced village land and pass it on to private companies and rich individuals…As this

procedural chain [Section 4(3) – 4(5) of the said Act] illustrates, although the village

council and assembly are charged with the management and allocation of village land

they have little voice in a President’s decision to acquire and transfer any part of their

land … as he or she deems fit…These powers are however inimical to the

decentralization concept which the Village [Land] Act and the Land Act purport to

espouse, and to the conceptualization of the President as the trustee of public land. The

Acts should therefore be amended to ensure that the President’s powers to transfer village

land are subject to the determination of the Court…where the reasons for and against this

action will be agreed and determined by an independent judiciary (Nshala 2008: 9 – 10).

The conflict has now taken a legal twist. With the legal aid of LHRC, three out of these seven villagers are representing their fellow Namwawala, Mofu and Mbingu villagers in a suit for the recovery of their land. Their case will be heard at the High Court of Tanzania (Land Division).

SOURCE: http://www.eed.de/fix/files/doc/110406_Land_Acquisition_Tanzania.pdf