TABLE OF CONTENTS
TABLE OF CONTENTS
LIST OF CASES
LIST OF STATUTES
INTERNATIONAL LEGAL INSTRUMENTS
ABREVIATIONS AND/OR ACRONYMS
1 GENERAL INTRODUCTION
1.1 Background of the Study
1.2 Statement of the Problem
1.3 Objectives of the Study
1.3.1 General objective of the study
1.3.2 Specific objectives
1.4 Significance of the Study
1.5 Literature Review
1.6 Research Hypothesis
1.7 Research Methodology
1.8 Organization of the Study
2 LEGAL FRAMEWORK AND MODEL OF ALTERNATIVE DISPUTES RESOLUTION IN TANZANIA
2.1 Legal Framework
2.1.1 The Constitution of the United Republic of Tanzania.
2.1.2 The Civil Procedure Code
2.2 Alternative Dispute Resolution currently in use in Tanzania
3 LEGAL AND INSTITUTIONAL FRAMEWORK FOR LAND DISPUTES RESOLUTION
3.1 Legal Framework
3.1.1 The Land Act
3.1.2 The Village Land Act
3.1.3 The Land Disputes Courts Act
3.1.4 The Ward Tribunals Act
3.2 Institutional Framework
3.2.1 The Village Land Council
3.2.2 The Ward Tribunal
3.2.3 The District Land and Housing Tribunal
3.2.4 The High Court (Land Division)
3.2.5 The Court of Appeal
4 CHALLENGES FACING ADR IN TANZANIA AND ITS FUTURE PROSPECTS
4.1 Challenges facing ADR in Tanzania
4.2 The Future of ADR in Tanzania
4.2.1 Ratification of Conventions
4.2.2 Growing number of statues which contains clauses for recourse to ADR
5 FINDINGS, CONCLUSION AND RECOMMENDATIONS
5.1 Findings and Conclusion
First and foremost I am grateful to Allah for his endless blessing upon me. I wish to thank numerous people who in one way or another assisted and or contributed to the success of this work, though it would not be possible to mention all of them here. However, I owe a special debt of gratitude to my supervisor, Mr. Abdallah Gonzi who took exceptional efforts to my work, his encouragement, constant support, guidance as well as his expertise, pertinent comments and valuable feedback regarding diverse aspect of my research until I managed to complete my report were of great value.
I also convey my sincere thanks to all my lecturers who contributed their valuable knowledge in the course of my study that enabled me to do this work.
I wish to express my sincere appreciation to my employer, The Drug Control Commission, for financing my LL.M Degree. It has been through that assistance that I have been able to write this research paper.
Finally, I extend my gratitude to my parents who taught me the value of education and gave everything that they could in order to ensure that I achieve my goals.
In a special way I wish to express my sincere thanks to Jalia Adam Kamugisha, my loving wife and our children, Rehema Mukaile, Abdulnoor Mujuni, Najim Kalumuna, Nasra Alinda and Faudhia Kagemulo for their dignified way of accepting to be shared with books during my study period. The love, support, patience, encouragement and prayers of my family have been amazing. Thank you very much.
LIST OF CASES
Abas Salim Kichenje v Shehe Mohamed Zayumba & Another, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 49 of 2005(unreported).
African Medical and Research Foundation vs. Steven F. Emmanuel and 3 others, High Court of Tanzania at Dar es Salaam, Land case No. 12 of 2011(unreported).
Attorney General vs. Hermanus Philippinus Steyn, High Court (Commercial Division) at Dar es Salaam, Misc. Civil Cause No. 11 of 2010(unreported).
Bwatamu Said vs. Said Mohamed Kindumbwe, High Court (Land Division) at Mtwara, Miscellaneous Land Case Appeal No.11 of 2011(unreported).
Dal Forwarding (T) Ltd. v National Insurance Corporation (T) Ltd. & Presidential Parastatal Sector Reform Commission, Commercial Case No. 70 of 2002(unreported).
DPP vs. Peter Vogel (1987) TLR 100
Hatibu Mtoo vs Juma S. Ngwatu & 3 others, High Court (Land Division) at Tanga, Land Revision No. 8 of 2009(unreported).
Fahari Bottlers Ltd & Another vs. Registrar of Companies & Another, Court of Appeal of Tanzania at Dar es Salaam, Civil Revision No. 1 of 1999(unreported).
Hector Sequeiraa vs.Serengeti Breweries Ltd, High Court of Tanzania, Labour Division, Labour Complaint No. 20 of 2009(unreported).
Karatta Ernest D. O and Others vs Attorney General, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 73 of 2014(unreported).
Nazira Kamru vs. MIC Tanzania Limited, Court of Appeal of Tanzania at Mwanza, Civil Appeal No. 111 of 2015 (unreported).
Niko Insurance (T) Limited vs. L-Line Corporation, High Court (Commercial Division) at Dar es Salaam, Commercial Appeal No. 1 of 2008(unreported).
Ramadhani Shebila vs. Habiba Ally, High Court (Land Division) at Tanga, Misc. Land Appeal No. 15 of 2007(unreported).
Raphael Simon vs Adrehem Mgima, High court Land Division at Tanga, Land Case Appeal No. 26 of 2008(unreported).
Tanzania Harbours Authority vs. Mathew Mtalakule and 8 Others, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 46 of 1999(unreported).
LIST OF STATUTES
Appellate Jurisdiction Act, 1979
Arbitration Act, Cap. 15 R.E. 2002
Civil Procedure Code, Cap. 33 R.E. 2002
Constitution of the United Republic of Tanzania, 1977
East African Community Mediation Agreement Act, Cap.232 R.E.2002
Employment and Labour Relations Act, No. 6 of 2004
Energy and Water Utility Regulatory Authority Act, Cap. 414 R.E. 2002
Fair Competition Act, No.2, Cap. 130 R.E. 2002
Labour Institutions Act, No. 7 of 2004
Land Act, Cap. 113 R.E. 2002
Land Disputes Courts Act, Cap. 216 R.E. 2002
Law of Marriage Act, Cap. 29 R.E. 2002
Local Government (District Authorities) Act, 1982
National Construction Council Act, Cap. 162 R.E. 2002
Public Procurement Act, Cap. 410 R.E. 2002
Societies Ordinance, 1954
Surface and Marine Transport Regulatory Authority Act, No. 9 of 2001
Tanzania Civil Aviation Authority Act No. 10 of 2003
Tanzania Communications Regulatory Authority Act, No, 12 of 2003
Village Land Act, Cap. 114 R.E. 2002
Arbitration Rules GN No. 427 of 1957
Court of Appeal Rules, GN No.368 of 2009
Fair Competition Commission Rules of 2010
High Court (Commercial Division) Rules of 2012
Land Disputes Courts (The District Land and Housing Tribunal Regulations, GN No. 174 of 2003
National Construction Council Rules, 2001
INTERNATIONAL LEGAL INSTRUMENTS
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958
Convention on settlement of investment disputes between states and Nationals of other states of 1965
Multilateral Investment Guarantee Agency of 1985
Treaty for establishment of the East African Community
UNCITRAL Model Law of 1985, as amended in 2006
National Land Policy, 1995
ABREVIATIONS AND/OR ACRONYMS
Abbildung in dieser Leseprobe nicht enthalten
Upon reform of land laws in 1999 following the National Land Policy of 1995 the new system for adjudication on land disputes aimed at adopting a procedure which is not tied to legal technicalities and that which is not strictly bound by rules of practice or procedure but which aims at delivering substantial justice. That’s why land laws embody some forms of ADR.
The main purpose of this study was therefore to examine the effectiveness of ADR legal framework in Tanzania and how useful it is in resolving land disputes. ADR processes currently in use in Tanzania are critically examined and their shortcomings reviewed. The legal framework for ADR and the role they play in providing the supporting structure for land dispute resolution are evaluated. Future prospects for ADR are indicated and recommendations for successful implementation of ADR in resolving land disputes are given.
The study has revealed that despite the specialized court system for land disputes settlement there is no distinct legal regime for use of ADR at all levels of land dispute settlement machinery. The only method of ADR in use at the High Court level is mediation through court annexed mediation like in any other civil cases though there are no procedural Rules guiding the same. Negotiation is rarely used where parties to the dispute opt to resolve the matter out of court and then file a deed of settlement in court.
It has been observed that ADR is not used at the District level where court annexed mediation is not applicable at the District Land and Housing Tribunal save for some few cases in which parties resolve the matter out of court and file a deed of settlement.
The study has also revealed that the legal framework provides for use of mediation at the level of Village Land Council and Ward Tribunal but there is lack of skills and competency to facilitate mediation process for land disputes resolution.
Based on the findings, the study recommends for review of the legal framework for Land Disputes settlement in Tanzania with a view to making ADR more effective in resolving land disputes in line with making appropriate changes in ADR Legal Framework.
CHAPTER ONE 1 GENERAL INTRODUCTION
1.1 Background of the Study
Land is the most valuable property of all assets that a human being can have as it is the determinant of social and economic development of any society1. Land is a reflection of the status of a given community in the sense that, economics of a community is defined by the nature of land it has2. The value of land in terms of economic growth and development of any given country is enormous. In Tanzania for example, majority of the population (82%) derives their main livelihood from agriculture and livestock sector activities which all depend on land3. Being most valuable land has to be administered with due process. The foregoing is reflected in the High Court of Tanzania decision in the case of Raphael Simon vs Adrehem Mgima 4 , when deliberating on mechanism used to control or to monitor ownership, disposition and other related matters of the like nature and put it as follows:
“Legally Land is a real property. Land as a property in legal sense it has an aggregate of rights attached to it which are guaranteed and protected by law. Its domination or indefinite right of use or disposition which one may lawfully exercise over particular thing or subject is what gives its value and therefore protection of its interest. Land as real property is inherent in every sovereign state by exercising its powers of eminent domain to expropriate land without owners consent. In other words there is no deprivation of real property (land) without any sanction of the law.”
Moreover, land is dispute-prone in Tanzania and around the world due to inter alia competing demands over the same which call for judicial and non-judicial methods of dispute resolution. The problem is fuelled by the fact that land does not expand while people and other living organisms relying on it for survival, keep on increasing, putting pressure on the limited available land. On these premises land disputes if not dealt with swiftly and equitably especially where there is inefficient means of dealing with land disputes can result to devastating effects on individuals, groups and even the entire society and sometimes loss to life.
The Government of Tanzania therefore took measures to find out solutions to land problems by undertaking major National Land Policy Reform in 1995 with the view of streamlining the institutional arrangements in land administration and disputes settlement. The National Land Policy (NLP) of 1995 resulted in the enactment of two important laws that is the Land Act No. 4 of 1999 and the Village Land Act No. 5 of 1995. These two legislations as well as the Land Disputes Court Act No. 2 of 2002 came up with new system for adjudication on land disputes whose aim is to adopt a procedure which is fast and is not tied to legal technicalities and that which is not strictly bound by rules of practice or procedure but aim at delivering substantial justice. This is reflected in section 51 of the Land Disputes Courts Act, Cap.216 R.E. 2002 and section 180 of the Land Act, Cap.113 R.E.2002. No wonder these legislations incorporate some forms of ADR.
1.2 Statement of the Problem
Effective implementation of any dispute resolution approach mainly depends on the legal framework of a particular country where it is subjected. Apart from having the laws to govern the procedures of allowing the parties to access justice machineries to assert their rights, the institutional framework also pray a great role in considering what the system can deliver to its stakeholders. In most developing countries like Tanzania, ADR techniques are not very familiar in use for resolving land disputes. However under the land laws some forms of ADR have been incorporated. This study is therefore designed to examine the evidence on the ground so as to investigate how far the existing legal framework has faired in settlement of land disputes through ADR.
1.3 Objectives of the Study
1.3.1 General objective of the study
The general objective of the study was to evaluate the strength of the legal and institutional framework governing settlement of land disputes through ADR.
1.3.2 Specific objectives
The study had two specific objectives:
1. To examine the strength of the legal framework for ADR in Tanzania in promoting the use of ADR in land matters.
2. To examine the extent to which the legal and institutional framework for administration of justice in land matters embedded ADR.
1.4 Significance of the Study
ADR is widely acceptable as consensual, cost effective and binding method of resolving disputes with fewer procedures and technicalities compared to cumbersome court processes. No wonder reforms of land laws in Tanzania incorporated some forms of ADR. The significance of this study therefore is to critically examine legislative and institutional bottlenecks that make it difficult to settle land disputes through ADR and suggest best practices. It is therefore to act as a catalyst calling upon the responsible authorities to make any necessary intervention to improve the statutes with a view of promoting use of ADR in settlement of land disputes in order to ensure effectiveness and timely justice.
1.5 Literature Review
Much has been written on ADR practice in the World legal system discussing various forms of ADR including their resolution techniques. Besides several researchers have written concerning practice of Arbitration in Tanzania as a form of ADR, but there seems to be no work/ literature in respect of resolving land disputes in Tanzania through ADR.
Winnie Sithole Mwenda5 traces the development of ADR internationally in general. Although the author assesses the impact of ADR on the justice delivery system in Zambia in particular, her work contributed greatly to my study as it contains very useful information to show experience on the use and benefits of ADR.
The author explains that alternative Dispute Resolution1 was developed as an alternative to the traditional dispute resolution mechanism, litigation, which had become costly, time consuming, did not give the parties control over the outcome of their disputes and was generally cumbersome.
She points out that ADR refers to a variety of techniques for resolving disputes without resort to litigation in the courts. The concept behind the introduction of ADR methods was, inter alia, to reduce the delays and costs associated with litigation; to introduce relatively less formal methods of dispute resolution; to introduce consensual problem solving and empower individuals by enabling them to control the outcome of their dispute and develop dispute resolution mechanisms that would preserve personal and business relationships. ADR processes were thus intended to produce better outcomes all round.
She explains that for a very long time courts world-wide have played a vital and leading role in justice delivery. However, experience has shown that sometimes litigation is a seemingly endless exercise and self-torturing ordeal. Serious concerns have repeatedly been expressed over spiraling costs and fees and delays in litigation procedures, congestion in courts, the all-too legalistic procedures, and the intimidating court-room atmosphere. In addition, the adversarial nature of litigation with the ‘win all or lose all’ attributes have been found un conducive to continued business or social relationships. All these factors have to some extent contributed to making litigation nerve-wracking to litigants. This state of affairs has brought about increasing dissatisfaction with litigation among disputants and other stakeholders and has necessarily led to the development of more flexible means of dispute resolution.
She goes on to explain that increasing globalization of the modern business world has also been a factor in the development of more flexible means of resolving disputes that provide alternatives to court-based litigation governed by the law and procedure of a particular state or country. Further, the legal profession has experienced vast changes in the last decade of the twentieth century. Not insignificant among them, is the growing interest among advocates in the use of alternatives to traditional court litigation to resolve their clients’ disputes more efficiently and economically, with less risks and better results. ADR is premised upon the principle of consensus. It is non-authoritarian and operates within the structure of a specific community according to the culture of the community’s prevailing moral norms. Western societies have in the last twenty years or so come to appreciate the necessity for access to justice through ADR techniques based on the so called ‘co-existential justice’ or the process for conciliatory solutions and the worldwide trend in the last decade of the twentieth century has been to resort to ADR due to the shortcomings observed in the formal system of justice delivery.
She notes that the formal system of justice has been unable to meet the needs not only of the business community, employees, etc., but also those of the ordinary citizens.
The inability of the formal system of justice to meet the needs of society has been due, inter alia, to the content of substantive law, as well as prohibitive costs, structure and procedural requirements of the courts. In addition, most litigants attest to finding the court environment intimidating. As a result, many people are denied access to the courts. Apart from the cost considerations, litigation is adversarial and not concerned with future relationships between or amongst the parties. It is outside the control of litigants and judges have little room for creativity when issuing judgments.
The author concludes that granted the advantages of ADR, it is neither a panacea which can cure all ills nor a substitute for litigation. Rather, ADR should be seen as being complementary to litigation.
This study is important, as it provides a clear background of ADR and elaborates its benefits. Further the study is helpful in considering various important issues pertaining to the review of ADR system in Tanzania in line with reforms taking place in other countries. However, the study addresses ADR generally and does not address the use of ADR in resolving Land Disputes which the present work will specifically cover.
According to Mashamba, Clement (2014) in his book; Alternative Dispute Resolution in Tanzania Law and Practice, ADR was transplanted into Tanzania from the West. His book is the most relevant to this research as he discusses Alternative Dispute Resolution in Tanzania generally. He traces the origins and ideology of ADR and examines reforms of the US justice system in favour of ADR and the spread of ADR beyond the USA and the benefits of ADR. He examines Alternative Dispute Resolution in African culture context and the role of ubuntu in dispute resolution in Africa and makes a comparison between formal ADR and traditional justice system in Africa.
He explains that ADR was introduced in Tanzania by GN No. 422 of 1994, amending the 1st schedule to the Civil Procedure Code introducing three new orders: Order VIIIA; Order VIIIB; and Order VIIIC. He pointed out the implications of the 1994 amendment to the CPC to be that all civil cases filed in courts must be referred to ADR in the form of Mediation. This legal position was buttressed in Fahari Bottlers Ltd & Another vs. Registrar of Companies & Another, Civil Revision No. 1 of 1999, Court of Appeal of Tanzania at Dar es Salaam (unreported) where the Court of Appeal of Tanzania held that the requirement for a suit to be referred to mediation first before full trial begins is a mandatory one under the CPC.
He discusses the significance of ADR in civil courts in Tanzania in that the demand for alternative ways to deal with legal disputes other than conventional courts arose out of the ever-increasing heavy caseloads and backlogs in Tanzania civil cases. So, the primary rationale for the introduction of ADR in Tanzania was to reduce the heavy caseloads as well as the backlogs. It was also meant to avoid resort to unnecessary procedural technicalities prevalent in traditional courts as well as reducing expenses involved in pursuing litigation in courts of law. In this regard, the court-annexed ADR system in Tanzania was designed in an informed way to allow parties to participate easily in this process and ensure that the relationship between the parties is preserved after they had gone the ADR process.
Moreover, he addresses Arbitration law and practice in Tanzania by explaining that the Arbitration Act of Tanzania was enacted in 1931 during British colonial rule. By then there were only two international instruments on arbitration that were in place: the 1923 Geneva Protocol on Arbitration and the 1923 Geneva Convention on the execution of Foreign Awards. So, the Arbitration Act predates some of the modern principal international Arbitration instruments: i.e the New York Convention on the Recognition and Enforcement of Foreign Awards and the 1985 UNCITRAL Model Law on International Arbitration. As such the Arbitration Act formally incorporates two of the International arbitration instruments, which are thus made part of the schedule to the Act. Although Tanzania has not amended the Arbitration Act to accommodate the 1958 New York Convention on the Recognition and Enforcement of Foreign Award and the 1985 UNCITRAL Model Law on International Arbitration, it is a party to the New York Convention, which entered into force in Tanzania on 12th January 1965. Tanzania is also a party to the Convention on settlement of investment disputes between states and Nationals of other states (ICSID) of 1965 and the Multilateral Investment Guarantee Agency of 1985. He argues that although Tanzania Arbitration Act has not been affected or influenced by the UNCITRAL Model Law, some of its basic principles have been adopted by the National Construction Council’ arbitration rules. He argues that although the arbitration Act was enacted in 1930s, it is only recently that arbitration has become popular in Tanzania, mainly as a result of an increase in commercial agreements having arbitration clauses.
He further discusses the theories and principals of international Arbitration, evolution of modern international commercial arbitration law and practice; and types of international Commercial arbitral Tribunals which are mainly two: permanen t and ad hoc tribunals. Permanent or standing tribunals which are those attached to institutions that are established on a permanent basis including,
- International Court of Arbitration of the international Chamber of Commerce (ICC)
- London Court of International Arbitration (LCIA)
- Organization for the Harmonization of Business Law in Africa (OHADA)
- International Centre for Settlement of Investment Disputes (ICSID)
- American Arbitration Association/International Centre for Dispute Resolution(AAA/ICDR)
Ad hoc arbitral tribunals are those tribunals established to settle a specific dispute, most of which commonly apply the rules of procedures laid down in the 1976 UNCITRAL Arbitration Rules.
The author addresses the challenges facing ADR in Tanzania on the basis of the findings of the ADR evaluation report and recommendations of the ADR evaluation Report.
For purposes of this study we shall confine ourselves on how ADR is used in resolving land disputes, challenges, effectiveness and whether has yield the intended results. The study goes further to make recommendations upon making an analysis of the model of ADR currently in use in Tanzania and from the actual practice of ADR including case laws which are examined in this study.
George Mandepo6 explains various issues relating to Arbitration and the Arbitration Act as the principal legislation regulating Arbitration in Tanzania. He makes a comparative analysis of the Arbitration carried out under the Arbitration Act and its rules and the one carried out under the National Construction Council Rules. He also addresses Arbitration under the Civil Procedure code. He points out that the National Construction Council (NCC) is a statutory body that was established in 1979 through the National Construction Act 1979, Cap 162, as amended in 2007. Pursuant to section 4 of the Act, among functions of NCC include promoting and providing strategic leadership to the stakeholders for the development of the construction industry as well as advice the government on all matters relating to the construction industry in Tanzania. Apart from its main statutory mandates in the Act of establishment, the Council is also engaged in facilitating construction dispute settlements through adjudication and arbitration under the National Construction Council arbitration rules. The current Rules applicable in the arbitration are the Arbitration Rules 2001 Edition, which replaced the old Rules of 1984. The Rules are in the form of guiding procedures for regulating arbitration between parties who seek to resolve their construction dispute through NCC. NCC is the only semi-government institution facilitating arbitration of construction disputes in Tanzania. Under the NCC Arbitration Rules, 2001, NCC role regarding arbitration, is only to facilitate appointment of arbitrators and coordination of all proceedings as the parties may agree.
The author explains that by virtue of its preamble, the NCC Rules are applicable to both domestic and international arbitration. For the international arbitration, the Rules take recognizance of the UNCITRAL Model Law. It is provided under the preamble that the parties who wish to have their construction disputes determined through the Rules, they should insert an arbitration clause in their contract to provide that any dispute or difference of any kind whatsoever which may arise in relation to any matter in connection with the agreement shall be referred to the arbitration under the Rules of NCC. If there is no any prior agreement to arbitrate, the Rules allow the parties to enter into “agreement to refer” the dispute through the NCC Rules at the time of occurrence of such dispute.
He also explains that the NCC Rules state that any matters, which are not covered therein, shall be governed by the agreement between the parties and the laws of Tanzania in case of disputes under domestic contract or in accordance with the law agreed by the parties in case of dispute arising out of, or in connection with international contract. However, the word “domestic” or “international” contacts are not defined in the Rules, neither is there any clause in the Rules defining words used therein.
He argues that unlike the Arbitration Act Cap.15, the NCC Rules contains a provision for the general principles regarding the objective of arbitration. In addition, they provide clear duties of the arbitrator and parties to the arbitration proceedings.
He points out that the object of arbitration is considered as an approach to obtain fair resolution of dispute by an impartial tribunal without unnecessary delay or expense. The arbitrator on his part is required to act fairly and impartially between the parties and to adopt procedures suitable to the circumstances of the case to avoid unnecessary delay or expenses to the parties. Likewise, parties to the disputes are also required to do whatever possible for the proper and expeditious conduct of the proceedings. Under Rule 3.2 Parties may agree to confer any other power to the arbitrator apart from those in the rules or their arbitration agreement. As a matter of procedure, pursuant to Rule 4, a party who wishes to commence arbitration shall send to the NCC a written request to that effect. A request shall contain particulars of the parties, brief statement of the dispute, copies of agreement and a separate submission with a copy sent to the other party. On receipt of the request, NCC shall then submit to the claimant a list of approved arbitrators and the claimant shall select three names and send back the names to NCC and NCC shall thereafter upon checking the availability of the arbitrators, request the Respondent to select one with 14 days, otherwise if there is a disagreement on the name, parties may request NCC to appoint an arbitrator who shall not be from the list proposed by the claimant. The procedure involving two arbitrators and umpire is only applicable on complicated arbitration whereby NCC is the one, which appoints the umpire after each party has appointed his own arbitrator.
He further explains that the jurisdiction and powers of the Arbitrator under NCC Rules are provided for under Rule 7.0 in which the arbitrator is required to exercise his powers and discretion so far as Tanzanian law allows. Among the powers of the arbitrators under the Rules include to determine validity and enforceability of contract by the parties, to order correction or amendment to such contract, to determine any question of law arising in the arbitration, to determine validity of arbitration agreement, to determine any question as to his jurisdiction, to order a joining of any party by consent and make single award, to make any interim orders and to award interest on any sum from and to any date as such as he determines to be appropriate etc.
He argues that the procedure for making an award under the NCC Rules is completely different from that provided in the Arbitration Act and CPC. Under Rule 12 of NCC it is provided that the arbitrator will make his reasoned award in writing and then send his award to NCC within 14 days after the conclusion of the hearing. NCC will then notify the parties for collecting of the award upon payment of any outstanding fee and costs. Rules 15.1 provides that if the award is not taken within one month of notification , NCC may by action recover all outstanding costs of the arbitration from any or all the parties. Nonetheless, NCC Rules do not specify what follows after a party had taken the award. In the other hand, rule 12 of the NCC Rules contradicts with section 12 of the Arbitration Act, which requires the arbitrator to file or cause to be filed an award in court upon being requested by any party to the arbitration to do so.
He addresses the Tanzania Institute of Arbitrators (TIA) as another registered private NGO in Tanzania whose main objective is to deal with arbitration. He pointed out that the Institute has been collaborating with NCC in training of construction professionals and lawyers to become arbitrators. However, there is no record to show that the activeness of the Institute in facilitating arbitration as it is for the neighbouring countries such as Kenya and Uganda where private arbitration institutions are well organized and active. In his view with increased pace in the use of Arbitration, TIA can be empowered to work effectively as a trusted institution for the promotion and determination of disputes through arbitration and other forms of ADR in Tanzania. He also opined that apart from institutions, the success of arbitration also depends on the quality of arbitrators. Concurrently with competent arbitration institutions to facilitate arbitration, the need to have skilled arbitrators who are knowledgeable of arbitration procedures and other forms of ADR is very important in the arbitration process.
He recommends for Tanzania to modernize its arbitration law in the light of ratified multilateral and regional conventions so as to ensure effectiveness and enable Tanzania to step on the same footing with her neighbours and trading partners under the East Africa community i.e Kenya and Uganda whose laws have been revised in line with UNICITRAL Model law.
He also recommends that the Tanzania Government should promote the establishment of private arbitration institution so that they can work effectively in facilitation and promotion of arbitration and other ADR forms.
The author has provided useful insight on Arbitration as one of the methods of ADR. This study goes further to consider some other forms of ADR that are in use in Tanzania and how they are useful in resolving land disputes.
Nuhu S. Mkumbukwa7 provides a broad knowledge on the categories and scope of ADR. He explained the meaning, merits and demerits of various ADR mechanisms such as Arbitration, Conciliation, Negotiation, Early Neutral Evaluation, Mediation, Partnering, Expert Determination and Mini-Trials. He also addressed other hybrid ADR models such as litmed, medlit, med-arb, arb-med, conc-arb and arb-conc; and argued that categories of ADR are not closed as there is room for parties or courts to be innovative and discover new ways of settling disputes out of court or aside from litigation by virtue of the phrase “such other means not involving trial” in order VIIIA Rule 3(1) of the CPC and that by this phrase the mechanisms of ADR mentioned here in above are invokable in Tanzania. His study is relevant to my research as it provides a detailed account of ADR mechanisms that are invokable in Tanzania though my study is specific on and addresses models of ADR that are currently in use in Tanzania by examining the actual practice including case laws.
It is noteworthy that the piece of literature considered in this study are not an exhaustive list, but their selection has been motivated by the fact that they cover issues conversed in my research.
1.6 Research Hypothesis
This study has been premised on the following assumptions:
1. The legal framework for ADR in Tanzania is not sufficiently effective to promote resolution of Land Disputes through ADR
2. Parties to Land Disputes cannot resolve their disputes without delay and unnecessary costs
1.7 Research Methodology
In order to achieve the aim, the researcher gathered and analyzed data from the following sources:
§ Relevant case laws and statutes relating to the topic
§ Relevant previous academic literature
§ Academic journals and textbooks
§ Reports from Government and non-governmental Organizations
§ Materials/Course handouts on the subject
The researcher adopted a qualitative methodology involving a comprehensive literature review and analysis of gathered information to present the work. The study may by no means be exhaustive due to time and monetary constraints to undertake an extensive and detailed field survey. It is merely designed to present some ideas for use of ADR in resolving land disputes in order to improve the existing Legislative Framework for resolution of land disputes in Tanzania.
1.8 Organization of the Study
This study is organized in five chapters.
Chapter one is an introductory chapter which deals with background, objectives and significance of the study, as well as briefly analyzing other studies that are relevant to this study. It also lays down the methodology employed.
Chapters two and three represent the main part of the work as far as ADR is concerned. Chapter two addresses the legal framework and model of Alternative Dispute Resolution currently in use in Tanzania by looking at their relevancy and effectiveness in facilitating resolution of land disputes, while chapter three discusses the Legal and Institutional Framework of Land Disputes settlements by highlighting how embody ADR and evaluates their performance as far as ADR is concerned.
Chapter four considers in details challenges facing ADR in Tanzania and its future prospects. Chapter five is a concluding chapter and summarizes the findings from the study. It concludes by giving recommendations in terms of legal framework for successful management of ADR in Tanzania and application of the same in resolving land disputes.
CHAPTER TWO 2 LEGAL FRAMEWORK AND MODEL OF ALTERNATIVE DISPUTES RESOLUTION IN TANZANIA
This chapter examines the legislative framework for ADR in Tanzania in order to establish their effectiveness in facilitating resolution of Land Disputes. It also examines the forms of ADR in use in Tanzania in order to find out how they are relevant to land dispute resolution.
2.1 Legal Framework
ADR in Tanzania is founded on the following Legal Framework.
2.1.1 The Constitution of the United Republic of Tanzania.
The constitution of the United Republic of Tanzania, 1977 as amended is the supreme law of the country just like in any other country. The Constitution embodies ADR by virtue of Article 107 A (2) (d) that requires courts to be guided by certain principles, inter alia, a need to encourage mutual settlement. It spells out as follows:
107 A-(2) In delivering decisions in matters of civil and criminal nature in accordance with the laws, the court shall observe the following principles, that is to say
(d) to promote and enhance dispute resolution among persons involved in the dispute;
Thus, the Constitution of the United Republic of Tanzania obligates the courts to ensure that they promote and support alternative dispute resolution.
2.1.2 The Civil Procedure Code
The legal foundation for Alternative Dispute Resolution in Tanzania is governed by the Civil Procedure Code, Cap 33 R.E.2002 particularly Order VIIIA, VIIIB and VIIIC except for land and labour matters that have a separate set of laws governing them at lower levels. Rule 3 of Order VIIIA provides for use of procedure for Alternative Dispute Resolution. It is to the effect that after pleadings are complete attempt have to be made to resolve the case through negotiation, mediation, arbitration or such other procedures not involving a trial. However, in practice it is only mediation which is actively practiced by courts under the auspices of the Civil Procedure Code as amended by Government Notice No. 422 of 1994.
2.2 Alternative Dispute Resolution currently in use in Tanzania
Under Order VIIIA of the CPC Rule 3 (1) three methods of ADR are mentioned, that is negotiation, mediation and arbitration, however there is room for use of other methods not specifically mentioned through the phrase such other procedures not involving a trial provided for under the same rule. The most commonly used ADR mechanisms in Tanzania are as follows;
Negotiation is a process in which the parties to the dispute directly discuss each other with a view to resolve the dispute. There is no intervention of third parties. Negotiation is the pre-eminent mode of dispute resolution and has the advantage of the parties negotiating between or among them to resolve the dispute or work out a compromise. It is the quickest way of resolving disputes, be they commercial or private. Sometimes disputes end after the parties negotiate a settlement. Where a settlement cannot be reached by negotiation, other methods of dispute resolution, including litigation are resorted to. However, the practice has been that while the matter is pending in court parties pray for time to try an out of court settlement by negotiating among them and if successful file a deed of settlement in court. The role of the court is to record what the parties agreed upon. On how negotiation is practiced we have the guidance of the Court of Appeal of Tanzania in the case of Karatta Ernest D. O and Others vs Attorney General 8 , in which the court emphasized that it was an agreement between the parties alone and the role of the court as far as negotiation is concerned was discussed. In that case the appellants were employees of the then East African Community which died in June 1977. The East African Community which had three countries, namely Kenya, Uganda and Tanzania, operated joint activities which included a common air carrier, a harbours corporation, railways, cargo handling services, posts and telecommunications and others. With the collapse of the community each individual country established its own entity to take over the functions which were being operated under the community. The collapse of the community also brought to an end the employment between the community and its staff.' Most of the staffs were employed in the newly established institutions. The problem which occurred was that the employees of the defunct East African Community were not paid their pensions and other benefits they earned as East African Community employees promptly. It took them years to be paid. The East African Community Mediation Agreement Act [CAP 232 R.E.2002] was enacted in 1984. Its purpose was to give effect to what the three countries had agreed on about the division of assets and liabilities of the former East African Community. Article 10.05 of the first schedule provided that each state shall:(a) Pay its nationals, employed by the Corporations or GFS and retired from active service by the division date the pensions and other benefits due to them on account of such employment. (b) Make provision for the pension rights and entitlements to other benefits accrued as of the division date in favour of its nationals in active service with such Corporations and the GFs at that date. The government took initiatives to honor the agreement and started making payments to the ex-employees of the Community. The ex employees were not satisfied with the payments. They felt they were being underpaid. It was then the appellants as plaintiffs filed Civil Case No. 95 of 2003 in the High Court of Tanzania at Dar es Salaam. On 21st September 2005 the case was marked settled as the parties had filed a deed of settlement showing the conditions upon which they had agreed to settle the matter. Somehow the parties found themselves discontented to what they had agreed upon on the deed of settlement then they went back to court. The Court of Appeal stated that:
“We have gone through the record of appeal and the submissions by the learned advocates and the learned Principal State Attorney representing the parties in this appeal. It is not disputed by the parties that the suit that was filed by the appellants (Civil Case NO.95 of 2003) was settled by the parties themselves. What they did was to inform the Court on how they agreed to settle the matter. That was done by filing the Deed of Settlement in court. The Deed of Settlement was filed in Court on 21st September, 2005, before Oriyo, J. as she then was.
The applicants made an attempt to file an application in the High Court after a period of one and half years after the Deed of Settlement where they asked the Court to give directions as to the true interpretation, meaning, and effect of the order that was given on 21/9/2005, to determine whether or not the respondent has fully complied with the judgment. The learned judge did observe correctly in our view that:-
‘The above judgment is not conventional type of judgment based on facts and evidence received by the court. It is not a reasoned judgment but merely a judgment recorded by the court. The basis of the judgment is the deed of Settlement. The basis of the Settlement is privy to the parties and unknown to this court. It was the applicants and the respondent and their representatives who negotiated and agreed on the terms/ drafts and signed the Settlement Deed.
When ready, they filed the Deed of Settlement in Court. It is only the applicants and the respondents who know the basis and the spirit of the terms and conditions contained in the Deed of Settlement. It is only parties who know how much each gained, took and give out in the process of the negotiation.’
The observation that was made by the learned judge when the appellants went back to the High Court to question the Deed of Settlement sufficiently explained the role of the court in as far as the Deed of Settlement is concerned. It was an agreement between the parties alone. How they arrived to the terms of settlement is a matter known to them alone. It was not a case in which evidence was given. What the Court was requested to do was to record what the parties had agreed upon. It is therefore wrong for the appellants to come to the Court to fault the learned judge for refusing to issue a certificate. If they needed one, they should have asked for it when they recorded the terms of settlement and before the respondent started making payment.”
The appeal was found to be lacking in merit and it was accordingly dismissed.
Mediation is a process of dispute resolution whereby the parties to the dispute reach a settlement with the help of a neutral third party. In Tanzania Mediation is the most common form of ADR used in courts which has been made part of the civil procedure and practiced as court- annexed mediation with Judges and Magistrates as Mediators. Besides mediation is used in land disputes settlement where it is the function of the village land council to mediate and assist parties to arrive at a mutually acceptable settlement. The Ward Tribunals also use mediation in resolving land disputes.
Mediation is also used under the Employment and Labour Relations Act No. 6 of 2004 where all labour disputes have to start by mediation by the Commission for Mediation and Arbitration established under section 12 of the Labour Institutions Act, No. 7 of 2004 and if mediation fails then the Arbitrator has to make a binding decision. In that respect the Labour Court has consistently enforced the rule that all labour disputes must first be referred to the CMA for mandatory mediation. In the case of Hector Sequeiraa vs.Serengeti Breweries Ltd, Labour Complaint No. 20 of 2009, High Court of Tanzania, Labour Division, the Labour Court dismissed as ‘incompetent’ a labour complaint which was filed directly in the court without first pursuing mandatory CMA mediation.
Furthermore mediation is used in the Commercial Court under the High Court (Commercial Division) Rules of 2012 part V of which talks about court annexed mediation. They provide as to what the mediator is required to do. Under these rules the mediator has, in an independent and impartial manner, to do everything to facilitate parties to resolve their dispute. May conduct joint or separate meetings with the parties, may seek expert opinion if parties agree to pay costs thereof if any. The mediator has to be guided by principles of objectivity, fairness and natural justice; and confidentiality is guaranteed by rule 39. These rules are exhaustive on how mediation has to be carried out and they provide the consequence of non appearance for mediation.
Arbitration is a method of dispute resolution whereby the parties to the dispute agree to submit their dispute to the binding decision of a neutral third party known as the arbitrator. The decision in arbitration is not by the parties but it is imposed by the third party as opposed to negotiation and mediation.
The Arbitration Act, Cap.15 R.E.2002 is the principal legislation regulating arbitration in Tanzania. It regulates both domestic arbitral proceedings and enforcement of foreign arbitral awards. Reference to arbitration pursuant to section 4 of the Arbitration Act read together with the First Schedule, unless there is any agreement to the contrary, a submission to the arbitration is deemed to be irrevocable except by leave of the court. Section 5 of the Act allows parties to the arbitration agreement to agree on the name of an arbitrator(s) to be appointed by a third person or appointment body designated therein. The award is enforceable as decree of the court by filing the same in the High Court by virtue of section 12 of the Arbitration Act, Cap.15 R.E. 2002 and the Arbitration Rules, GN.427 of 1957.
Arbitration is also governed by the Civil Procedure Code under the rules made under section 80 to the code which are incorporated in the second schedule that provides for both arbitration by the order of the Court and that without intervention of the court. As noted by Mkumbukwa9 there are six forms of arbitration in Tanzania. It is only the sixth form of arbitration which is governed by the Arbitration Act. This form includes international and local arbitrations. This would also cover arbitration carried out under the National Construction Council Rules in respect of construction disputes discussed in the preceding chapter.
The other five forms of arbitration are dealt with as provided for under the second schedule to the civil procedure code by virtue of Order VIIIC Rule 2. The first form is the one provided for under Order VIIIA Rule 3 of the CPC where parties to the case during the stage of pre-trial conference may request the court to allow them to pursue arbitration as a form of ADR instead of going to mediation or any other form. This Rule envisages an arbitration which was not contemplated by the parties when they signed the agreement. They may get an idea of going to arbitration after they are before the court. This is quite a departure because ordinarily there ought to be arbitration clause or arbitration agreement. The second one is similar to the first one and the only difference is that the second one is talking about reference to arbitration at any stage before judgment is pronounced while in the first one reference is before trial. The second form is provided for under Rule 1(1) of the Civil Procedure Arbitration Rules. Like the first one this form pre-supposes existence of a suit in court and absence of an enforceable arbitration clause binding the parties. This form has a broader scope since arbitration can be resorted to even after any other form of ADR has failed. Even after parties have closed their case before judgment they can request to go to arbitration. The third form of arbitration is to be found under Rule 17 of the CPC arbitration rules under which a party may apply to the court for leave to file a written agreement allowing reference of the dispute or differences to arbitration so as to seek court’s assistance in compelling the other party to attend arbitration. This form pre-supposes that there is a written arbitration agreement and there is no pending suit in court between parties in respect of that dispute and one of the parties is refusing to submit to arbitration as per their agreement. The fourth form is provided for under Rule 18 of the CPC arbitration rules which covers the situation where the plaintiff ignores the arbitration clause and files a case in court. It allows the defendant to apply to the court to stay proceedings initiated by the plaintiff in disregard of the agreement to refer the dispute to arbitration. The fifth form is arbitration without intervention of the court which is provided for under Rule 20 of the CPC arbitration rules. This is where the parties themselves have referred the matter to arbitration without involving a court and an award has been made thereon. Any person interested in the award has to make an application in writing to any court having jurisdiction on the subject matter of the award that the award be filed in court and the court proceeds to pronounce judgment according to the award. Upon pronouncement of judgment the decree follows and no appeal lies from such decree except in so far as the decree is in excess of or not in accordance with the award.
Moreover, there is a distinct legal regime for Arbitration in labour matters. Under the provisions of sections 88 and 93 of the Employment and Labour relations labour disputes that cannot be resolved through mediation are resolved by arbitration. Arbitrators under CMA issue awards that bind the parties to the disputes and may be enforced by the Labour Court as a decree of a court of competent jurisdiction. Such awards are final and conclusive, are not appealable and the only avenue to challenge the same is through review or revision by the Labour Court.
Conciliation is not directly mentioned under order VIIIA Rule 3 of the CPC but is envisaged under the phrase such other procedures not involving a trial.
The term conciliation is difficult to define and has eluded numerous authors. For instance, many authors tend to treat conciliation as being synonymous with mediation, but that attempt is wrong. Newman10 discusses conciliation and notes that the conciliator is usually more interventionist than the mediator but still endeavours to bring disputing parties together and to assist them to form proposals on key issues. The author further notes that “given the looseness of the ADR terminology the terms ‘mediator’ and ‘conciliator’ are often used interchangeably.”
Article 1 of the Regulations on the Procedure of International Conciliation adopted by the Institute of International Law in 1961, provides that conciliation is:
“a method for the settlement of international disputes according to which a commission is set up by the parties to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being acceptable by them or of affording the parties with a view to its settlement, such and as they may have requested.”
As such Merrils11 writes that the “search of terms susceptible of acceptance” is a crucial role of a conciliator. He is more active than a mediator and engages in an enquiry but not formal as an arbitrator and his terms/suggestions are not binding to the parties. At the same time, his role is wider than that of an inquiry, as inquiry may or may not be part of conciliation.
Conciliation is useful in resolving social political disputes and is hailed for its confidential utility. However of recent it has fallen out of favour in practice. But that has not prevented its supporters to argue that the fact that conciliation is retained in numerous contracts, conventions and laws, still shows how important this medium of dispute settlement is, regardless of the fact that it has recently fallen into disuse.
In Tanzania conciliation is commonly used in matrimonial disputes. Under the Law of Marriage Act, Cap. 29 R.E. 2002 matrimonial disputes cannot be instituted in court before going to Marriage Conciliation Board established under section 102 whereby Boards are established by the responsible Minister in every Ward. The aim is to enable matrimonial disputes to be resolved amicably. Section 104 of the law talks about the proceedings of the Board however, there is no exhaustive rules of procedures governing conciliation by the Board.
Conciliation is also used by the Media Council of Tanzania (MCT) which is a voluntary, self-regulatory body established by media practitioners in June 1995 and programme activities started in May 1997 after the Council was registered under the Societies Ordinance, 1954. Among MCT core activities are to oversee that journalists, editors, broadcasters, producers, directors, proprietors and all those involved in the media in the country adhere to the highest professional and ethical standards and, secondly, to consider and mediate upon complaints from the public and amongst the media inter se against infringement of the Code of Ethics. The operations of the Council are overseen by the Governing Board through two statutory Committees: the Ethics Committee, and the Finance and Administration Committee. It is within the purview of the Ethics Committee to mediate upon complaints brought to the Council, although reconciling the parties in dispute is the major goal of the activities of the Ethics Committee12. Parties that present themselves before the Ethics Committee do so voluntarily. Decisions of the Committee derive their legitimacy from voluntary submission by the parties, and from the fact that the Council is an independent organ of the stakeholders. There are many complaints that are successfully mediated by officers of the MCT Secretariat without having to go to the Committee. It is heartening to note that in an overwhelming number of cases, the disputant parties respect and abide by the decisions made by the Committee. There are several reasons for the high rate of compliance, including the stature of the personalities sitting on the Committee. Members of the committee are respected members of the public including respected former judges and lawyers. The other reason is the demonstrated objectivity and fairness in the way the Committee performs its duties. This has won trust from across the board, including that of senior individuals in government, academia, religious establishments, and ordinary people. It is also the fact that most people, who are aggrieved by media outlets, seek their names to be cleared. They would be happy to get a sincere apology and a correction. At the MCT, cases are disposed of promptly yet judiciously. A case takes an average of three months at the MCT. So the work of the Ethics Committee is a service. But it is also mitigation against costs in terms of court expenses and damages that could be awarded by courts of law. The arbitration process by the MCT Ethics Committee is also not only less costly, but also conciliatory. It offers a chance to those involved to talk and argue with each other, and reach an agreement in a manner that leaves very little injury, if any, and a lot more confidence and trust. It offers a chance for a win-win situation to the two parties. There is no public humiliation to a media house if it loses, and it is an educating process to the complainant if he or she loses.
Some of the cases reconciled include that of Hon. Edward N. Lowassa Vs Heko Newspaper, conciliation case no. 1 of 1997 in which Hon. Edward Lowassa (MP for Monduli) lodged his complaint to the Ethics Committee of the Media Council of Tanzania against Heko newspaper, respondent . At issue was a lead news story published by the respondent in its August 27, 1997 issue with the headline: Tume ya Kero ya Rushwa: Baadhi ya viongozi, vigogo ambao watafikishwa mahakamani wafahamika: The committee found the publication libelous, wrong, inaccurate and biased. The respondent did not take any measure to correct or apologize despite the complainant’s letter requesting the respondent to do that.
The Ethics Committee ordered Heko newspaper to pay TZS 1,000,000 to Lowassa as compensation. Heko was also ordered to publish an apology on the front page with similar prominence as that given to the original story.
Heko newspaper paid the amount in four equal installments of TZS 250,000 and the money was given to children’s charitable homes in accordance with Hon. Lowassa’s wishes. Heko further published an apology as ordered.
Another case is that of Seifuddin Khanbhar Vs Nipashe Newspaper, conciliation case no. 3 of 2002 in which the complainant lodged a complaint against a story published by Nipashe n ewspaper of December 6, 2002 alleging that the complainant’s company, which dealt with cultural heritage, had defaulted in paying business taxes for about ten years. The Ethics Committee ruled that the newspaper had wronged the complainant by publishing a story without evidence to support the allegations. It ordered the newspaper to apologize to the complainant and asked the parties to settle the matter amicably and to report the outcome of the reconciliation. The Committee also stated that its powers were limited to reconciling parties and not to order compensation which involved millions of shillings, explaining that such powers were a preserve of the courts of law. The parties settled the dispute amicably. The newspaper published an apology and paid an undisclosed amount of money as compensation to the complainant.
The other case, just to mention few, is that of Charles Mhagama Vs Nipashe Jumapili Newspaper, conciliation case no. 2 of 2007 in which a councilor in the Songea Municipal Council, Charles Mhagama, lodged a complaint against Nipashe Jumapili for allegedly defaming him in its edition of July 8, 2007, in which it was reported that Mhagama was publicly whipped by the father of a school girl whom Mhagama was allegedly having a love affair with. The complainant wanted the respondent to apologize and pay compensation for publication of a false story that he had been beaten in public by the father of a girl he had been caught with at a guest house. The respondent argued that no name was used, thus harm, if any, was minimized. The committee decided that:
i. Demand for an apology and restoration of his dignity was reasonable.
ii. The Committee observed that the editor’s argument that because no name was used in the story would minimize harm did hold water. It was even more dangerous because in innuendo, any other person could seek redress from the Committee arguing that the story was actually about him.
iii. The truth was the cardinal principle in journalism and all efforts should be taken to ensure the authenticity of the facts before a story is published.
iv. The Code of Ethics also enjoins journalists and editors to give a right of reply to all parties in a story, especially in contentious issues such as the ones raised in the story. The Ethics Committee found that Nipashe Jumapili did contravene the Code of Ethics for media practitioners by not adhering the requirements to seek the truth and denying the right of reply to the complainant. The Committee thus ordered:
a) Nipashe Jumapili to publish on its front page an apology in its next issue; and
b) The newspaper to agree with the complainant on costs to be paid as solatium to defray his costs.
The Editor of Nipashe Jumapili agreed to adhere to the decisions of the Ethics Committee to apologize and defray the costs of the complainant. After a caucus, the two parties agreed on the payment of TZS 1,000,000.
These are some of cases that were reconciled by MCT out of many others.
CHAPTER THREE 3 LEGAL AND INSTITUTIONAL FRAMEWORK FOR LAND DISPUTES RESOLUTION
3.1 Legal Framework
Formal, informal and Alternative justice systems exist and people seek for any of these to resolve their land conflicts. Each system has its own way of managing conflict. However choice of the appropriate process depends on the particular circumstances. These justice systems have their own strengths and weaknesses in resolving land conflicts. Formal justices such as the courts of law are noted to be inefficient and unable to satisfy the needs of the populace in urban as well as the peri-areas particularly in developing countries (Sackey 2010). Informal system such as the customary on the other hand also has its flows. Alternative to these two systems is the modern Alternative Dispute Resolution (ADR) system which remains as an alternative and not as a replacement to the formal courts or the customary system. These justice systems could be enhanced and developed to support and complement each other in order to achieve an effective justice system. On these premises this chapter examines how the legal framework for resolution of land disputes embodies ADR.
3.1.1 The Land Act
The Land Act No. 4 of 1999 essentially provides for the basic law in relation to land, other than the village land. It provides for the management of land; and settlement of dispute and related matters. This features clearly in the long title of the law. It deals with General land and general land is defined under section 2 of the Land Act to mean all public land, which is not reserved land or village land and includes unoccupied or unused Village land. However, the law somehow confusingly, includes village large land which is unoccupied or unused.
The Land Act contains provisions that facilitate resolution of disputes through ADR under the provisions of section 18 on inquiries. For instance as of recent in July, 2016 the Minister for Lands Hon. William Lukuvi appointed an inquiry under section 18 of the Land Act, Cap 113 R.E.2002 and section 7 (2) of the Village Land Act, Cap.114 R.E. 2002 by appointing Justice Jacobo Mwambegele from Commercial Division of the High Court to adjudicate on boundaries dispute involving Mabwegele and Kambaya Villages and neighbouring Villages of Mfuru, Mbigiri,Dumila, Mambwega and Matongolo in Kilosa District, Morogoro Region. This was after the mediator; Mr. Stephen Mashishanga had failed to mediate the parties upon one party refusing to continue with mediation.
1 Lendita, Simon W,(2013) “Investment and Land Disputes in Tanzania: A vehicle for Investment Legal Reform”, Dissertation submitted in partial fulfillment of the requirement for award of Degree of Master of Laws in Commercial law of Mzumbe University, pg 1, available at scholar.mzumbe.ac.tz…/LLM-Dissertation-SIMON%20WILSON%20LENDITA-201…, accessed on November 24,2016
2 Ibid pg 1
3 URT National Strategy for Growth and Reduction of Poverty, Vice President’s Office, June 2005 pg 6 at www.povertymonitoring.go.tz/Mkukuta last visited January 02,2017
4 Land Case Appeal No. 26 of 2008, High court Land Division at Tanga (unreported)
5 Paradigms of Alternative Dispute Resolution and Justice Delivery in Zambia, Thesis submitted for the Degree of Doctor of Laws at the University of South Africa, 2006 available at uir.unisa.ac.za/handle/10500/2163/thesis.pdf?sequence=1, accessed on November 26,2016
6 Resolving Construction Disputes through Arbitration: An overview of Tanzania Legal Framework, Dissertation submitted for the Degree of LL.M in Construction law at University of Strathclyde Law School, 2010 available at https://www.scribd.com/doc/104535724 accessed on November 23,2016
7 The impact of pre trial protocols and Alternative Dispute Resolution (ADR) mechanisms in the expeditious disposal of civil suits – the case study of Dar es Salaam Region, LL.M Dissertation submitted at UDSM, 2009.
8 Civil Appeal No. 73 of 2014 Court of Appeal at Dar es Salaam (unreported)
9 Mkumbukwa op.cit
10 Paul Newman (1999) “Alternative Dispute Resolution,” CLT professional publishing, Ltd p 9
11 Merrills, J.B (1998) International Dispute Settlement, 3rd Edn, Cambridge University press, pg 96
12 MCT cases Report 1997-2007 pg 3.
- Quote paper
- Burhani Kishenyi (Author), 2017, Resolving land disputes through alternative dispute resolution (ADR). An overview of Tanzania's legal framework, Munich, GRIN Verlag, https://www.grin.com/document/358802