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.
Table of Contents
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
2.2.1 Negotiation
2.2.2 Mediation
2.2.3 Arbitration
2.2.4 Conciliation
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
5.2 Recommendations
Objectives and Core Themes
The primary objective of this research is to evaluate the effectiveness of the current legal and institutional framework in Tanzania regarding the resolution of land disputes through Alternative Dispute Resolution (ADR) mechanisms. The study explores how existing laws facilitate or hinder the use of ADR and investigates the practical implementation of these methods at various levels of the land dispute settlement machinery.
- Analysis of the ADR legal framework in Tanzania
- Evaluation of institutional roles in land dispute resolution
- Critique of existing legislative and procedural bottlenecks
- Examination of the efficacy of mediation and arbitration in land matters
- Assessment of future prospects for ADR implementation
Excerpt from the Book
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 society. 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 has. 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 land. 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, 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.
Summary of Chapters
1 GENERAL INTRODUCTION: This chapter outlines the importance of land as a primary economic asset and establishes the research objectives regarding the efficacy of ADR in resolving land-related conflicts in Tanzania.
2 LEGAL FRAMEWORK AND MODEL OF ALTERNATIVE DISPUTES RESOLUTION IN TANZANIA: This section provides an analysis of the statutory foundation for ADR, including the Constitution and the Civil Procedure Code, and evaluates the commonly used techniques like negotiation, mediation, and arbitration.
3 LEGAL AND INSTITUTIONAL FRAMEWORK FOR LAND DISPUTES RESOLUTION: This chapter examines the specific institutional structure for land disputes, focusing on the roles of the Village Land Council, Ward Tribunals, and higher courts in applying ADR.
4 CHALLENGES FACING ADR IN TANZANIA AND ITS FUTURE PROSPECTS: This chapter details the impediments to successful ADR implementation, such as the legacy of adversarial common law systems and the lack of procedural clarity, while assessing future opportunities.
5 FINDINGS, CONCLUSION AND RECOMMENDATIONS: The concluding chapter summarizes the key gaps identified in the land dispute settlement machinery and offers recommendations for legal and institutional reforms to improve the effectiveness of ADR.
Keywords
Alternative Dispute Resolution, ADR, Land Disputes, Tanzania, Legal Framework, Mediation, Arbitration, Negotiation, Civil Procedure Code, Land Act, Village Land Council, Ward Tribunal, Institutional Framework, Justice Delivery, Dispute Settlement.
Frequently Asked Questions
What is the primary focus of this research paper?
The paper fundamentally examines the effectiveness of the existing legal and institutional framework for resolving land disputes through Alternative Dispute Resolution (ADR) in Tanzania.
What are the central thematic fields discussed in the work?
The work covers land law reform, institutional mechanisms for dispute settlement (such as Village Land Councils and Ward Tribunals), the procedural challenges of common law systems, and the implementation of various ADR methods.
What is the core objective of this study?
The primary goal is to evaluate the strength and utility of the current legal and institutional framework in promoting and supporting ADR as an effective means of resolving land disputes.
Which scientific methods were employed?
The researcher adopted a qualitative methodology, conducting a comprehensive review and analysis of relevant case laws, statutes, academic literature, and government reports.
What topics are explored in the main body of the text?
The main body investigates the legal basis for ADR, the practical application of mediation and arbitration, specific challenges like the "speed track" issue, and the role of various land-specific judicial bodies.
How would you characterize this work through keywords?
The work is defined by its focus on ADR, Tanzanian land law, institutional framework, mediation, arbitration, and the reform of the legal system to reduce litigation backlogs.
How do Village Land Councils function as ADR bodies?
They are intended to serve as mediatory bodies where parties voluntarily submit their disputes for resolution, rather than acting as a formal trial tribunal.
What does the author propose regarding legal education?
The author recommends that ADR education be integrated into law school curricula to shift the training of lawyers from an adversarial focus toward a consensual, problem-solving approach.
- 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
