VIOLATION OF INDIGENOUS RIGHTS TO SECURE LIVELIHOODS

MZUMBE UNIVERSITY

FACULTY OF LAW

RESEARCH REPORT

ON

VIOLATION OF THE INDIGENOUS RIGHT TO SECURE

LIVELIHOODS IN PROTECTED AREAS: A CASE STUDY OF

NGORONGORO CONSERVATION AREA

BY

JOSEPH MOSES L

REG: NO. 1101049/T.12

SUPERVISOR: MR NKOBOGO JANUARY, J

A COMPULSORY RESEARCH REPORT SUBMITTED IN PARTIAL

FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE

BACHELOR OF LAWS (L.L.B) DEGREE OF MZUMBE UNIVERSITY

2015

i

CERTIFICATION

The undersigned certifies that he has read and hereby is recommended for acceptance

by the Mzumbe University a dissertation titled VIOLATION OF INDIGENOUS

RIGHTS TO SECURE LIVELIHOODS IN PROTECTED AREAS: A CASE

STUDY OF NGORONGORO CONSERVATION AREA, in partial fulfilment of

the requirements for the award of the bachelor of laws (L.L.B) of the Mzumbe

University.

Signed this............ day of.............. 2015.

Signature........................................

January Nkobogo.

Supervisor.

ii

DECLARATION

I, JOSEPH MOSES L, do hereby declare that this is my own original work and has

never been submitted anywhere and is not being submitted for a similar course or any

other degree here at Mzumbe University or in any other University.

Signed this……… day of……… 2015.

Signature.....................................

JOSEPH MOSES L

Student.

iii

COPYRIGHT ©

This dissertation is copyrighted under the Berne Convention, The Copyright and

Neighboring Rights Act [Cap. 218 R.E 2002] and other International and national

enactments, in that behalf, an intellectual property. It may not be reproduced by any

means, in full or in part, except for short extracts in fair dealings, for research or private

study, critical scholarly review or discourse with acknowledgement, without a written

permission of the author or Mzumbe University on the author’s behalf.

iv

ACKNOWLEDGEMENT

Despite all efforts I sold for this work, it could never be the same without inputs made

by several individuals, myriad thanks go to them all. I wish to mention some of them,

first and foremost, all praise and thanks go to the Almighty God, my lord and survivor

Jesus Christ for seeing me through this noble course of study. To him be the Glory. I

owe a huge debt of gratitude to my supervisor, Mr. January Nkobogo, his inputs

through constructive and crucial advice about the substance of the work were truly

invaluable and he led me to many insights, his inputs in this research have been

unflagging especially remarkable in light of the amount of time he spent correcting

mistakes are honoured. Indeed, I proud to be under his supervision.

Sincere appreciation goes to Ramat law and Legal Consultant for the great welcoming

during my fieldwork, Appreciation also extended to the staff and management of

Ramat Law and Legal Consultant especially, the Managing Directors namely Adv.

William Tate Olenasha and Adv. Edward Ole Kaita for approving and granting me

permission to undertake my field work in their noble firm and their constructive

comments and encouragement will always be honoured. Also Ms. Josephine Mshanga

and Ms. AnithaTairo for many insights and cooperation during field undertaking.

Furthermore, sincere gratitude is extended to my Family Moses Ole Shangay and

Meshuko Moses, my brothers and sister for their benevolence and fatherly supports.

May God continue to shower His abundant blessing on you and your families and

wisdom continue ruling you in peace and prosperity.

I am highly indebted to my humble, loving and caring Miriam and Angie Joseph for

their sacrifice, support and understanding you put in whilst I was away during the field.

The innermost appreciation for all authors whose works have been referred in this

research. Researchers, as an old sage said, have a way in importuning people to meet

their always-pressing need for data and information. If it is true that ‘a researcher is

someone who borrows your watch to tell you what time it is’, then all these people

have been more than generous in lending their timepieces and while expressing my

gratitude for all those who contributed time, materials and ideas for this study, I take

full responsibility for any errors of fact or interpretation (and I know there are quite a

few) that may have escaped my scrutiny.

v

However, this work could not be the way it is without the enormous input of the

respondents, comrades, friends and relative, namely Emmanuel Shangai, Moseka

Sangale, Innocent Gerald Swaty, Parkepu Nakuroy, Ms. Redempta Martin, Wilfred

John, Temba Adolf, and Joshua Elibariki, Wiliam Ole Seki, Innocent Baran, Moson

Yakon, Lemalali Lonjumuya, Yohana Shaudo just to mention few, am grateful to you

all for your inputs, prayers and support. Mr Joshua Sanduta for his tired less response

during data collection despite his old age, his inputs are tantamount to the success of

this research.

Finally, thanks to all people of good will.

vi

DEDICATION

This research is dedicated to my late humble brother, Mr. ALAIS MOSES may his

soul and all the departed rest in perfect peace (R.I.P), Amen.

Dedication also goes to my lovely parents Moses Oleshangay and Meshuko Moses,

my sister, Joyce Shangai, my lovely Angie and Miriam, my brothers Lesikar, Julius,

Lemali, Denis, Luca et al for their great moral, material and the upbringing

vii

INTERNATIONAL INSTRUMENTS

African (Banjul) Charter on Human and Peoples' Rights (Adopted 27 June 1981,

entered into force 21 October 1986)

Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment, 1984

Convention for the Protection of Human Rights and Fundamental Freedoms as

amended by Protocols No. 11 and No. 14

Convention on Access to Information, Public Participation in Decision making and

Access to Justice in Environmental Matters Aarhus Convention, Aarhus

1998

Human Right, A Compilation of International Instruments Volume II Regional

Instruments. United Nation New York and Geneva, 1997

The International Covenant on Economic, Social and Cultural Rights Adopted and

Opened for signature, ratification and accession by General Assembly

resolution 2200A (XXI) of 16 December 1966 entry into force 3 January

1976, in accordance with article 27

Protocol to The African Charter on Human and Peoples` Rights on The

Establishment of an African Court on Human and Peoples` Rights

Rio De Janeiro Declaration on Environment and Development 1992

Tirana Declaration adopted by the International Land Coalition’s Assembly of

Members on 27 May 2011

United Nation Declaration on the Right of Indigenous Peoples, 2007 as adopted by

General assembly in 2007

Universal Declaration of Human Rights, 1948, as adopted by the United Nations

General Assembly on 10th December, 1948.

viii

MUNICIPAL INSTRUMENTS

PRINCIPAL LEGISLATION

Constitution of the United Republic of Tanzania [CAP.2 R.E 2002]

Basic Right and Duties Enforcement Act No 33 of 1994 [CAP 3 R.E 2002]

Commission for Human Rights and Good Governance Act, 200 [CAP 391 R.E 2002]

Game Park law (Miscellaneous Amendment) Act (No.14 of 1975)

Land Acquisition Act. Act No.47 of 1967[CAP 118 R.E 2002]

Land Act. Act No. 4 of 1999 [CAP 113 R.E 2002]

Local Government (District Authority) Act. Act No 7 of 1982 [CAP 287 R.E 2002]

National Park Act (No.7 of 1948), [CAP.282 R.E 2002]

Ngorongoro Conservation Act, 1959 [CAP 284 R.E 2002]

Ngorongoro Conservation Area Act No 413 of 1959 [CAP 284R.E 2002]

Village Land Act, Act No 5 of 1999 [CAP 114 R.E 2002]

Wildlife Conservation Act 2008 Act No 5 of 2009

SUBSIDIARY LEGISLATION

Ngorongoro Conservation Area (Amendment) Rules 1966 (GN No.178 of 1966)

Ngorongoro Conservation Area (control of Guides) Rules, 1963 [CAP 413] GN

No.17 of 1963

Ngorongoro Conservation Area Ordinance Rules [CAP 413] GN No 234 of 2000

Ngorongoro Conservation Area Ordinance, Rules 1972[CAP 413] (GN 12 of 25

January 1972)

Societies (Declaration of unlawful society) order, 1966 (GN No.434 of 1968)

ix

LIST OF CASES

Ako Gembul & 100 Others vs. Gidagamowd & Waret Farms Ltds & NAFCO

HC Arusha 12/1989 (Unreported)

Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA)

Chumchua Marwa v. Officer i/c of Musoma Prison & AG, Misc. Criminal case No.2

of1988 (HC), Mwanza (Unreported)

Ibrahim Korosso & 134 Others v. Thomas Ole Sabaya & Others.

Hub/S/1032/2001/2002/Mara (Unreported)

Kakubukubu Suzan & Others v. Kasubi Walwa Joseph & Director, Mwanza

Municipal Council, Civil Appeal No.14 of 1991, (CA) (Unreported)

Lekengere Faru Parutu Kamunyu and 16 Ors v. Minister for Natural Resources,

Tourism and Environment, the Director of Wildlife Division, Project

Manager of Mkomazi Game Reserve and AG [2000] TLR 160 (CA)

Methuselah Paul Nyagwaswa v Christopher Mbote Nyirabu [1985] TLR 103 (CA)

Mwalimu Omari and another v Omari A Bilali [1990] TLR 9 (HC)

National Agricultural Food Corporation v Mulbadaw Village Council & others

[1985] TLR 88 (CA)

Ng’otyaki Oloruja & Others v. R, Criminal Appeal No.8 of 1991 (HC-Arusha)

(Unreported)

R v. Ramadhani Pemba, Alli Lioka, Loda Ngaitati, Kipara ole Kaika & Sevi

Nyamoye HC-Arusha) Criminal Sessions Case No. 33 of 1995 (Unreported)

Saed Kubenea v. AG Civil Cause No. 28 of 2014 (HC-Dar es Salaam) (Unreported)

Yoke Gwaku & 5 Others v. National Agriculture and Food Corporation (NAFCO) &

Another, Civil case No.52 of 1988 (HC-Arusha) (Unreported)

Yoke Gwaku and others v NAFCO and others [1991] TLR 87 (CA)

x

CASES FROM OTHER JURISDICTIONS

African Network for Animal Welfare (ANAW) v. The Attorney General of the

United Republic of Tanzania Reference EACJ No. 9 of 2010 [Unreported]

Alberto Capitao v. Tanzania. African Commission on Human and Peoples' Rights,

Comm. No.53/91 (1995)

Centre for Minority Rights Development (Kenya) and Minority Rights Group

International on behalf of Endorois Welfare Council v. Kenya ACHPR

276/2003

Ole Njogo and Others v. The AG of the British East Africa Civil Case No. 91 of

1911(E.A.P. 1914) 5 E.A.L.R. 70 (HC-Mombasa)

Sawhoyamaxa Indigenous Community v. Paraguay CORTE IDH, 2006

Tellis V. Bombay Municipal (1987) LRC 351

Xákmok Kásek Indigenous Community v. Paraguay CORTE IDH, 2010.

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577

xi

LIST OF TABLES

Table I……………Court response to human Right Thematic page 48/49

Table II………..... International Standards accorded to NCA page 53

xii

LIST OF ABBREVIATIONS AND ACRONYMS

AG Attorney General

ACHPR African Commission on human and people’s rights

ANAW African Network for Animal Welfare

AU African Union

CA Court of Appeal

CAP Chapter of revised law of Tanzania

CHRGG Commission for Human Right Rights and Good

Governance

CJ Chief Justice

EACJ East Africa Court of Justice

HC High Court

IBID Ibidem

IUCN International Union for Conservation of Nature

J Justice/Judge

LARRRI Land Rights Research and Resources Institute

LGCA Loliondo Game Control Area

LHRC Legal and Human Right Centre

Loc.Cit Loco Citato

LLB Lex Legum Baccalaureus (Bachelor of Laws)

MNRT Ministry of Natural Resources and Tourism

NAFCO National Agriculture and Food Corporation

NCA Ngorongoro Conservation Area

NCAA Ngorongoro Conservation Area Authority

xiii

NGONET Ngorongoro Non-Governmental Organizations

NP National Parks

OBC Ortello Business Corporation

Op.cit Opere Citato

PC Pastoral Council

FPIC Free, prior and informed consent

R.E Revised Edition

PA’s Protected Areas

SADC Southern African Development Corporation

SENAPA Serengeti National Park

TANAPA Tanzania National Parks

TAWIRI Tanzania Wildlife Research Institute

THRDCs Tanzania Human Right Defenders Coalition

TLR Tanzania Law Report

UCRT Ujamaa Community Resource Team

UN United Nations

UNECOSOC United Nation Economic Social Council

UNESCO United Nations Educational, Scientific and Cultural

Organization

UPR Universal Periodic Review

V Versus

WCC World Conservation Congress

xiv

ABSTRACT

This research analyses the past and present realities of the rights of indigenous people

in Tanzania and Ngorongoro Conservation Area was the case study. In chapter one the

author identified the problem to be studied and a detailed background on it. The same

chapter provided inter alia the objective from which the study was undertaken

methodology to be employed during data collection. In chapter two a detailed

conceptual framework of indigenous people and indigenous rights was supplied, this

include the historical perspective as to who are indigenous people and the

contemporary idea especially in Africa propounded in the basis of Endorois case which

linked indigenous not from the context of first people only but on economical and

mode of life and livelihoods. In chapter three, legal and institutional analysis governing

indigenous people life and livelihoods was analyzed among other things to address as

to how the court has responded to human right thematic of vulnerable and marginalized

people.

A wonderful analysis of the contemporary problem that befell indigenous people was

undertaken in chapter four from which the Researcher took part in the field area. In the

last chapter a short and brief conclusive containing inter alia the strong standing of the

author regarding the root cause of indigenous predicament with strong

recommendation based on the finding on the mechanism through which this historical

injustice could be addressed.

This research addressed the controversies and dilemmas that befell indigenous people

who reside in Ngorongoro Conservation Area for decades, the research attempted to

address issues like right to live and means of sustaining life, right to free, pre and

informed consent for issues that affect indigenous livelihoods in protected areas, right

to communal occupation of ancestral land just to mention a few. In that regards, several

methods of data collection were employed that include both primary methods such as

Interviews, questionnaires, focus group discussion and observation of peoples' ways

of life during the field. Also, several literary works were consulted and utilized in fair

dealing. The researcher tries to show the way forward through which the identified

problem is to be rectified.

xv

TABLE OF CONTENT

CERTIFICATION ...................................................................................................... i

DECLARATION ....................................................................................................... ii

COPYRIGHT © ........................................................................................................ iii

ACKNOWLEDGEMENT ........................................................................................ iv

DEDICATION .......................................................................................................... vi

INTERNATIONAL INSTRUMENTS .................................................................... vii

MUNICIPAL INSTRUMENTS ............................................................................. viii

PRINCIPAL LEGISLATION ................................................................................. viii

SUBSIDIARY LEGISLATION ............................................................................. viii

LIST OF CASES ....................................................................................................... ix

CASES FROM OTHER JURISDICTIONS .............................................................. x

LIST OF TABLES .................................................................................................... xi

LIST OF ABBREVIATIONS AND ACRONYMS ................................................. xii

ABSTRACT ............................................................................................................ xiv

CHAPTER ONE: ..................................................................................................... 1

GENERAL INTRODUCTION ............................................................................... 1

1.1 Background of the Problem ................................................................................. 3

1.2 Statement of the Problem ..................................................................................... 8

1.3 Objectives of the Research ................................................................................... 9

1.3.1 General Objective ..................................................................................................... 9

1.3.2 Specific Objectives ................................................................................................. 10

1.3 Significance of the Study ................................................................................... 10

1.5 Research Hypothesis .......................................................................................... 11

1.6 Research Design and Methodology ................................................................... 12

1.6.1 Research Design ...................................................................................................... 12

1.6.1.1 Area of Study ....................................................................................................... 12

1.6.1.1.2 Sampling and Sampling Techniques ................................................................. 13

1.6.1.1.3 Sample Size ....................................................................................................... 13

1.6.2 Methods of Data Collection .................................................................................... 14

1.6.2.1 Primary Data Collection ................................................................................... 14

1.6.2.1.1 Interview ....................................................................................................... 14

1.6.2.1.2 Questionnaires ............................................................................................... 14

1.6.2.1.3 Focus Group Discussion ............................................................................... 14

xvi

1.6.2.1.4 Observation ................................................................................................... 15

1.6.2.2 Secondary Method of Data Collection ............................................................. 15

1.7 Limitation of the Study ...................................................................................... 15

1.7.1 Delimitation of the Study ........................................................................................ 16

1.8 Literature Review ............................................................................................... 16

CHAPTER TWO ................................................................................................... 23

THE CONCEPT OF INDIGENOUS PEOPLE AND THEIR RIGHTS .......... 23

2.1. Introduction ....................................................................................................... 23

2.2 The Indigenous People ....................................................................................... 23

2.3 Indigenous People in Tanzania .......................................................................... 23

2.4 Indigenous Rights .............................................................................................. 24

2.4.1 Right to Life with Dignity ....................................................................................... 25

2.4.2 Communal and Collective Right to Property .......................................................... 27

2.4.3. Right to Free, Prior and Informed Consent ............................................................ 28

2.4.4. Right to Economic Development ........................................................................... 29

2.4.5. Right to Access Legal Avenues ............................................................................. 30

2.5 Conclusion ......................................................................................................... 31

CHAPTER THREE: .............................................................................................. 32

LEGAL AND INSTITUTIONAL FRAMEWORK ............................................ 32

3.1 Introduction ........................................................................................................ 32

3.2 The Legal Framework ........................................................................................ 32

3.2.1 The Constitution of United Republic of Tanzania 1977 ......................................... 32

3.2.2 Land Acts ................................................................................................................ 33

3.2.3 Basic Right and Duties Enforcement Act ............................................................... 35

3.2.4 Wildlife conservation Act ....................................................................................... 35

3.2.5 Ngorongoro Conservation Act ................................................................................ 36

3.2.6 National Parks Act .................................................................................................. 37

3.2.7 Case Law ................................................................................................................. 37

3.3 The Institutional Framework .............................................................................. 40

3.3.1 International Institutions ......................................................................................... 40

3.3.1.1 United Nations Permanent Forum on Indigenous Issues ................................. 40

3.3.1.2 International Union Conservation of Nature (IUCN) ...................................... 41

3.3.1.3 African Commission on Human and People’s Rights (ACHPR) ..................... 42

3.3.1.4 International Work Group for Indigenous Affairs (IWGIA) ........................... 42

xvii

3.3.2 Municipal Institutions ............................................................................................. 43

3.3.2.1 Commission for Human Right and Good Governance ........................................ 43

3.3.2.2 Ngorongoro Conservation Area Authority (NCAA) ............................................ 43

3.3.2.3 Civil Society Organization (CSO) ....................................................................... 44

3.4 Conclusion ......................................................................................................... 45

CHAPTER FOUR .................................................................................................. 46

DATA ANALYSIS AND FINDINGS OF THE RESEARCH ............................ 46

4.1 Introduction. ....................................................................................................... 46

4.2. The British-Maasai Agreement of 1959 .............................................................. 1

4.3 Indigenous Communal Land Tenure .................................................................... 4

4.4 Indigenous Participation and Consultation .......................................................... 5

4.5 Designation of Ngorongoro as a World Heritage Site ......................................... 6

4.5.1 Impacts of the World Heritage Designation ............................................................. 8

4.5.1.1 Limitation of Grazing Resources ....................................................................... 9

4.5.1.2 Threats of Eviction ........................................................................................... 10

4.5.1.3 Cultivation Ban and Food Insecurity ............................................................... 12

4.5.1.4 Failure of the Contemplated Multiple Land Use .............................................. 13

4.6 Efforts made by NCAA and the Government .................................................... 14

4.7 Threat Facing the Conservation ......................................................................... 16

4.8 Indigenous Land Rights versus State Interests in Wildlife Protection ............... 16

4.8.1 Views from Indigenous ........................................................................................... 17

4.8.2 Views from Conservation Authorities .................................................................... 18

4.8.3 Critical Comments .................................................................................................. 20

4.9 Conclusive Remark ............................................................................................ 21

CHAPTER FIVE .................................................................................................... 22

CONCLUSION AND RECOMMENDATIONS ................................................. 22

5.1 Conclusion ......................................................................................................... 22

5.2 Recommendations .............................................................................................. 24

5.2.1 Recognition of Indigenous People .......................................................................... 24

5.2.2 Adoption of Holistic Approach ............................................................................... 25

5.2.3 Adoption of Co-ownership Principle over NCA ..................................................... 25

5.2.4 Equal Right of Occupancy for all Indigenous ......................................................... 26

5.2.5 Re-enactment of the NCAA Act ............................................................................. 27

5.2.6 Grabbing of Indigenous Land should be Resolved/Addressed ............................... 28

xviii

REFERENCE ........................................................................................................... 30

BOOKS .................................................................................................................... 30

ARTICLES ............................................................................................................... 31

REPORTS ................................................................................................................ 32

PAPER PRESENTATION ...................................................................................... 32

ELECTRONIC SOURCES ...................................................................................... 32

1

CHAPTER ONE:

GENERAL INTRODUCTION

The close ties of indigenous peoples with the land must be recognized

and understood as the fundamental basis of their cultures, their spirit

ual life, their integrity and their economic survival and livelihoods.

Their relation to land are not merely a matter of possession and

production, but a material and spiritual element, which they must fully

enjoy even to preserve their cultural legacy and transmit it to future

generations1.

This research seeks to address the existing dilemmas facing the indigenous peoples

who live in protected areas in Tanzania for decades or centuries, yet have been denied

right to secure livelihood by superior interest groups. No law exactly recognize

indigenous people in Tanzania but on the basis of the famous decision of the African

Commission on human and people’s rights hereinafter referred as (ACHPR) in the case

of Endorois Welfare Council v. Kenya2, almost four Tanzanian society, namely

Maasai, Akie, Barbaig and Hadzabe qualify to be accorded the status of indigenous

people. While the revenues of natural resource development are filtered out of regions

where indigenous peoples live, the harms stay behind them. Threats to indigenous

peoples are not new but their scale and severity have increased. Tanzanians living in

and/or around wildlife-protected areas have been in an unpleasant state of limbo

regarding the role of the sector in alleviating the abject poverty facing them3.

Places where indigenous peoples live are more likely to be targeted for economic

development or conservation strategies, but received little or no economic benefit as a

result; in the case of the African Network for Animal Welfare (ANAW) v. The Attorney

General of The United Republic of Tanzania4, where the court barred the Serengeti

road which was aimed to be economic linkage between region bordering Serengeti

1The Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter­Am Ct HR (Ser C) no.79 (2001), para 149 2African Commission for Human and People Right 276/2003 3Parkipuny. M., (1997). Pastoralism, Conservation and Development in the Greater Serengeti Region. Multiple land-use: The experience of Ngorongoro Conservation Area, Tanzania: Gland- Switzerland & Cambridge UK 4EACJ No. 9 of 2010 [Unreported]

2

National Park on the basis of the delicate ecosystem, the court held that “the said action

would have deleterious environmental and ecological effects and is likely to cause

irreparable and irreversible damage to the delicate ecosystem of the Serengeti and

adjoining national parks such as the Masai Mara in Kenya”.

Ngorongoro Conservation Area hereinafter referred as (NCA)5 will be the point of

concentration to analyze how the right of indigenous people to secure livelihood has

been and still violated. One of the overriding threats facing indigenous peoples in NCA

is the risk of being driven from ancestral land and natural resources which are vital for

their livelihoods, their culture and often their identity as people; they have been

violently evicted from the western Serengeti with no compensation and now the old

Serengeti scenario seem to be near the doors. The government is forcing people living

in protected areas to vacate their places for economic or conservation purpose. What

is threatening people in Ngorongoro is not as such new; it is the reflection of the

ongoing struggle faced by indigenous people in Tanzania and worldwide. The law has

been used as a tool of evicting indigenous people from their ancestral land which also

threaten their life and livelihoods. Indigenous in Mkomazi had faced serious systemic

mass expulsions from the Game Reserve6.

Unlawful eviction has also been witnessed in the great Serengeti, the first one took

place in 1959 in what is referred as the Anglo Maasai Agreement of 1959 to which all

people formally occupying the now Serengeti National park were violently evicted by

the colonial government. The second Serengeti eviction was the recent Nyamuma

eviction as held in the case of Ibrahim Korosso& 134 others. V. Thomas Loy Ole

Sabaya& Others7the court held that “the Constitutional rights to privacy, right to fair

Treatment, Right to own property and Protection by the State have been illegally

violated”.

5NCA is the area covering Sq.km 8292 situated in Ngorongoro District Long. 35°30' E; Lat. 3°15' S5 on the west flank of the great rift valley, Arusha Region Northern Tanzania. 6Mvungi. S., (April, 2007)Study on Options for Pastoralists to Secure Their Livelihoods Experiences in the defence of Pastoralist Resource Rights In Tanzania: Lessons and Prospects Part A, Report submitted to CORDS 7Hub/S/1032/2001/2002/Mara (Unreported)

3

A sharp acceleration in the acquisition of lands, notably by foreign investors in search

of arable land and natural resources, has led in many cases to what has been labelled

“land grabbing”. The demand to extract previously inaccessible resources in the

remotest regions are putting indigenous peoples under increasing threat to secure

livelihoods from governments and private companies wanting to profit from the

resources found on or under their lands, these ill-effects are wide ranging.

For almost three years now threat of evicting people residing in protected areas,

particularly the Loliondo Game Control Area in the name of nature and wildlife

conservation for tourism has been the matter of great concern. Lawful and unlawful

means have been utilized to justify these myopic plans. For example a huge military

operation was established to crack down on poachers was found to be targeting

pastoralist communities instead, leaving a trail of burned houses, dead livestock and

many inhabitants unlawfully arrested, tortured and killed.

1.1 Background of the Problem

Following the London Convention of 1934 which call upon the colonial government

to protect Flora and Fauna, it was in 1940 that The Serengeti Game Reserve was

established in the place occupied by Maasai society. At first the law puts restriction

for the entry in the game Control Area but the native resident of the place were

exempted from the restriction. The customary right such as settlement, grazing fields,

hunting, and spirit of the indigenous people found before the establishment of the

reserve was not altered.

The idea of National Parks which its modus operandi advocated for the separation of

human being from game animals was sought by the colonial government, the

committee of inquiry which was formed under Sir Barclay Nihill, a Judge of the

Eastern African Court of Appeal to study the issue recommended that original

Serengeti Game Reserve be portioned into two separate units, the western part to be a

National Park to which human activities are highly restricted and the Eastern

Ngorongoro highlands now CA to be the home for the indigenous people (Maasai,

4

Akie, Tatoga mostly known as Wamang’ati and Hadzabe)8.Maasai in what they called

a treaty were evicted from western Serengeti and moved to join the rest in the

Ngorongoro highland (NCA) which was henceforth to be their permanent home9.

Before the ink was dry, a new idea of protecting the Highland specifically Ngorongoro

Crater was put on table but with the views of reconciling wildlife conservation with

the right of the indigenous people in a multiple land use context10, because there was

no guide to the “multiple land use” area at that time, the colonial government and, after

1961, the Tanganyika/Tanzanian state fell back and run the NCA more-or-less as a

regular protected area with tight, top-down controls. A management plan was

formulated in 1960 and revised in 1962

By the end of 1958 and early 1959Conservation has forced indigenous herders off their

traditional grazing lands, away from their sacred and cultural sites in the western

Serengeti leaving the community unable to practice their traditional livelihoods. The

founding NCA Ordinance11 mark the beginning of the discriminatory laws and practice

for indigenous themselves (majority versus minority) in one hand and indigenous and

other persons. The minister was empowered to make rules prohibiting, restricting and

controlling entry into and residence within the conservation Area provided that

“Nothing in any rules made under this section shall operate so as to prohibit, restrict

or control the entry into or residence within the conservation Area of any member of

the Maasai tribe12.

The Ordinance gives privilege to majority indigenous (Maasai) resident, but remain

silent on the right of the minority (Tatoga, Akie and numerous Hadzabe) who were

found in the area before the establishment of the Conservation; this was upheld by the

8Lissu. T., (2000) Policy and Legal Issues on Wildlife Management in Tanzania’s Pastoral Lands: The Case Study of the Ngorongoro Conservation Area: Vol.1 Law, Social Justice & Global Development Journal (LGD). 9Loft, M., (1995), Response to Danida Draft Appraisal Report on Economic Recovery programme for the Ngorongoro Conservation Area pastoralist. Copenhagen: Committee for Pastoralists issues (unpublished). 10Shivji. I, & Kapinga. W., (1998) Maasai Rights in Ngorongoro, Tanzania. International Institute for Environment and Development and Land Rights Research & Resources Institute(IIED) & HAKIARDHI: London, U.K 11Ngorongoro Conservation Area Ordinance No 413 of 1959 12S. 6 of Game Ordinance 1948

5

Act which replaced the Ordinance. There is the problem of derogative clause law to

the right granted to the so called indigenous13. The minister was empowered to

prohibit, restrict, and manage cultivation, grazing, use of forest products, residence

and settlement within the NCA for indigenous people who held the land under deemed

right of occupancy, but does not apply to freehold land, leasehold and any plot under

a grant right of occupancy held by non-indigenous people14.

The turning point of human right violation took its shape from 1975; this is the period

to which the NCA laws were reshaped15. It was in this era that the ban of subsistence

farming, which was a food supplement and means of preserving livestock from crisis

sale was effected.16 This was an effort to upset NCA Indigenous residents so that they

would leave the conservation area of their own accord. The lives of the people were

and are still in peril as the result of small scale subsistence cultivation bans. As held in

Olgar Tellis & others v. Bombay Municipal17, right to life is beyond that of physical

existence, it includes life in its entirety and means of sustaining it. In the study area

right to life was and still violated not only with regard to the means of sustaining their

physical existence, but physical existence itself has, in some instances been taken

away18. The case of R v. Ramadhan Pemba, Alli Lioka, Loda Ngaitati, Kipara ole

Kaika & Sevi Nyamoye19analyze the incidence to which the enforcement machineries

used excessive force to which the deceased (Ekesengei Maandalo) was fatally killed

on the basis of possessing a gun used in poaching. There are various incidents that

indigenous residences were destroyed by fire without any due notification by the order

of NCA official20.

The NCA laws denied person affected by any decision to seek remedy from a court of

law for any infringement done by the NCAA. It seems that the established

13 [CAP 413 R.E 2002]S. 8 and 9 (1)(A-C) for indigenous and (d) for non-indigenous 14Ibid 15Game Parks Laws (Miscellaneous Amendments) Act, 1975 (Act. No 14 of 1975) 16[CAP 413]S.9A op.cit 17 (1986) AIR 180 supl.(2) 51 18Lissu, op.cit p.34 19HC (Arusha) Criminal Sessions Case No. 33 of 1995 Unreported 20Shivji and Kapinga, op.citP.43 explaining the 1994 scenario were herds of cattle grazing in the village forest that has been impounded and detained by NCAA yards for several days without feed or water, beating of the cattle owners and burning their bomas.

6

Constitutional Principle that “The Judiciary shall be the authority with a final decision

in dispensation of justice in the United Republic of Tanzania21” in not yet born in mind

in NCA laws. The principle of Equality before the law pertained in the Constitution

are not much applicable within protected areas, the principle that “when the rights and

duties of any person are being determined by the court or any other agency, that

person shall be entitled to a fair hearing and to the right of appeal or other legal

remedy against the decision of the court or of the other agency concerned”22 is not

much known in protected areas23.

It is difficult to know what is really allowed and what is not within the NCA, living

within the conservation is allowed but building residential premise is only with

permission. Conservationist has for several occasions sought to exclude the NCA

indigenous from the area as it was done in forming the Serengeti National Park,

Amboseli, Tarangire and Masai Mara24. The case for expelling them has always been

presented on ecological grounds of environmental degradation and competitive threat

to wildlife species but despite decades of studies on vegetation and wildlife species of

the NCA/Serengeti area, little or no evidence has ever been presented to back up the

argument of ecological damage. NCA laws allow the Minister or NCAA Board of

Directors to disallow any person previously residing within the Conservation to remain

within the NCA, this seems to go against the decision in the case of Chumchua Marwa

v. Officer i/c of Musoma Prison & AG25where the court held involuntary eviction to

be against the law.

In 1979 NCAA requested UNESCO to commission the planning study which was

carried by Homewood and Rodgers who argued, it’s ironic that NCAA approached

UNESCO with the purpose to fund the management plan which will ultimately lead to

the resettlement of NCA indigenous26. Regardless of the periodic moves to expel this

21The United Republic of Tanzania Constitution of 1977 [CAP 2 R.E 2002]Article 107A (1) 22 Ibid Article 13 (6) (a) 23 [CAP 413] op.citS.14 24NCAA Board of Directors (1980), Minutes of 8th Meeting of NCAA Board, Arusha 31/12/1980. Minute 1:8 mapendekezo ya muda mrefu-lazima binadamu waondoke quoted from Lissu. T, op.cit 25Misc. Criminal case No.2 of 1988 (HC), Mwanza 26 Homewood & Rodgers op.cit p. 72

7

indigenous, the land availability, political and human right problems in attempting to

resettle thousands of people and their herds were not considered.

The International Union for Conservation of Nature (IUCN) in the late 1980s declared

NCA to be the heritage in danger hence the need for the government involvement

which led to firth management plan to rescue the situation27. The commission of

inquiry for ICUN research study for the long question of pastoralist rights within the

NCA was commissioned. The report urges the NCAA to make major improvements

in their input to indigenous welfare residing in the NCA. The commission stated

We make strong recommendations/case for their continued presence. The

study shows that the Maasai adds to the value of Ngorongoro, rather than

detract from them. The pastoralist emerges as an integral part of the

remarkable ecosystem and we feel that its survival is bound up with the

recognition of their place there” “… The Maasai are the integral part of

the system, that they have not caused any significance reduction in the

conservation value and that the Maasai have the right to stay…28

In 1987 an anti-cultivation campaign was initiated by the conservator ended slashing

1305 acres of maize and 666 people were arrested many of them fined and other

imprisoned29for contravening the already repealed law and the court relied on Section

9(I) (ii)30which provide no punishment for the offence alleged to have been

committed31. Following the severity and illegality of anti-cultivation operation the

committee of inquiry was formed which recommended the NCA junior official

involved in the Saga be terminated but action against the culprit unattended32.

The NCAA is the unique conservation area compared to any other protected areas on

the fact that it is the sole conservation area in the country and is also the sole protected

area that human settlement are lawfully permitted compared to the like of National

parks. Despite the fact that NCA is the conservation area there are lawful village dully

registered and operates as the rest of the village away from the conservation the

differences being the village within the NCAA are more connected to NCAA itself

27 Fosbrooke, H.A (1972), ‘Ngorongoro: The Eighth Wonder’, Andre Deutsch, London. 28Homewood & Rodgers op.cit p. 73 29Makacha, S, &Ole Sayalel, P. (1987), The Problem of Agriculture at Ngorongoro, Law Enforcement Department, Ngorongoro Conservation Area Authority, (mimeo) 30 Ngorongoro Conservation Area Authority Ordinance op.cit 31Oloruja Ng’otiek and Others v. Republic 1991Arusha (HC) Unreported 32Shivji & Kapinga 1998 Maasai Right op.cit p.42

8

than the District Council. In several occasion secret plans to give NCAA title to the

land of the NCA without informing the NCA residents were framed33, as an attempt to

remove all the indigenous claims to Customary and village land ownership and control.

It should be remembered that the granted right of occupancy does not extinguish the

pre-existing customary land right as held in the case of AG v. Lohay Akonaay and

Joseph Lohay34the court held

Customary or deemed rights in land, though by their nature are nothing

but rights to occupy and use the land, are nevertheless real property

protected by the provisions of Article 24 of the Constitution of the United

Republic of Tanzania and their deprivation of a customary or deemed right

of occupancy without fair compensation is prohibited by the Constitution.

Despite all aforesaid threats and human right violation there is not any indication

of serious steps taken to curb this trend. In 2013 a serious famine was reported in

the entire of the NCAA which not only caused suffering of many families, but

also people did lost life as the result of hunger. This pretext reflects a fundamental

lack of appreciation of the State on the special plight of the indigenous people in

protected Areas hence the want of addressing this matter arises.

1.2 Statement of the Problem

Controversies and dilemmas surrounding human right violation have been the most

critical concern in Ngorongoro for almost more than half a century and yet remain

unresolved questions to date. The NCA which was meant to be the permanent home

after Serengeti eviction has been faced with several legal restrictions including

subsistence farming ban, threat to eviction within the NCA with no any scientific

research on the place to relocate them, denied of accessing the court by the NCAA

Act, draconian laws whose Constitutionality is questionable, absence of free, prior

informed consent and limited right to economic development which jointly threaten

their right to life, means of sustaining life and livelihoods.

33Olle Timan, M. (1997) “The Future is Uncertain for the Maasai Residence of NCA.” Paper presented at Community Donor/Supporter Meeting on Multiple Land Use in the Ngorongoro Conservation Area 34[1995]TLR 80 (CA)

9

The struggle for collective rights which is common to indigenous people seems to be

at the beginning within the jurisprudence of the courts which raise the fear of taking

general struggle for community right in the Court of law, the case of Lekengere Faru

Parutu Kamunyu and 16 Ors v. Minister for Natural Resources, Tourism and

Environment, the Director of, Wildlife Division, Project Manager of Mkomazi Game

Reserve and AG35shows how the law has been used to justify evictions in conservation

areas and how authorities fail to compensate pastoralist when wrongful eviction has

been proved.

The court has been using legal technicalities to deprive the right to which the

communities were entitled. In the case of National Agriculture and Food Corporation

(NAFCO) v. Mulbadaw Village & Others36 where the court held “the Barbaig

Pastoralists are not falling under the category of Native in Tanzania” despite the bare

fact they are found nowhere else on the Earth than in Tanzania.

In the case of Yoke Gwaku & 5 Others v. National Agriculture and Food Corporation

(NAFCO) & Another37where the court held “Only representative to the suit are the

one covered by the court relief” despite the fact that the court acknowledge that the

pastoralist have been illegally dispossessed of their land. It is worth pointing out that

the position of the court on reparations has been subject to criticism, because although

it recognizes the collective character of the communal property of indigenous peoples,

it maintained for a long time a traditional position that was limited to declaring a

human rights violation and its respective reparation only in relation to the members of

the communities individually, without doing the same, explicitly and directly, in

relation to the indigenous community as a collective and an independent subject.

1.3 Objectives of the Research

1.3.1 General Objective

This research seeks to address the shortcoming of the law governing NCA and the

extent to which the Ngorongoro Conservation Act38 denied NCA Indigenous

35(HC-Moshi) Civil Case No. 33 of 1994 (unreported) 36Civil Appeal No.3 of 1986 (CA), Dar es Salaam 37Civil case No.52 of 1988, Arusha (HC) (unreported) 38 Ngorongoro Conservation Area Act [CAP 283 R.E 2002]

10

fundamental right specifically the right to secure livelihoods. There are need to check

enforceability and Constitutionality of the NCA governing Act39 in the line with

United Republic of Tanzania Constitution40.

1.3.2 Specific Objectives

i. To analyze key issues related to land tenure/occupancy within the NCA and

social-economic aspect affecting the livelihood of indigenous. The

researcher needs to crosscheck if the NCAA has land Title over the NCA

land and if the creation of NCA absolved or defeated indigenous land

customary rights.

ii. To evaluate on whether laws governing the conservation area are likely to

infringe the rights of indigenous in the respective area.

iii. To address on the possible way to accommodate indigenous rights and the

interest of the state (conservationist) in the same area.

iv. To ensure effective involvement and engagement of the indigenous

community with the Authority in decision making

1.3 Significance of the Study

Any scholarly work intends to have the positive impact to the readers. In this research

the author needs to share knowledge with his readers specifically in the field of human

rights and on this basis the author believe the research to have the following

significance.

i. The finding of this research provide measures which should be taken by

relevant authorities to protect the rights of the indigenous people within the

Conservation Area and any other places of the same nature. This is because

the problem facing people in the NCA are not isolated, the same problems

faced or facing person residing within or around protected areas in

Tanzania and all over the world.

ii. The findings of this research divulge the lacuna in the Ngorongoro

Conservation Area Authority laws regarding the rights of indigenous

39 Ibid 40The Constitution of United Republic of Tanzania 1977 [CAP 2 R.E 2002]

11

within the study area that may lead to the amendment so as to comply with

Constitutional requirements on equality of human beings.

iii. The findings of this research reveal the real situation in the study area and

recommends the possible solution so that appropriate action to be taken by

the relevant authority.

iv. The study also serves as the basis of knowledge and reference to other

researchers and other academician in the future precisely on these dealings

with human right, and indigenous people.

v. The research findings stipulates the essential criteria for the achievement

of the contemplated multiple land use to be found through freedom,

equality, justice and dignity of human being.

vi. The research findings provides the relevant solutions to the ongoing crisis

national wide facing Indigenous, pastoral, hunters and other societies to

which their livelihood is under pressure of being eliminated by superior

interest groups.

vii. The findings of this research will also help the community to understand

their fundamental rights that the NCAA and the Government ought to

protect.

1.5 Research Hypothesis

While proceeding with the research there are assumption to serve the purpose of

providing the necessary tools needed for this task, three scenarios are envisaged,

i. That the long history of violation of human Right in the Ngorongoro

Conservation Area Authority (NCAA) is strategically put in place to force

the indigenous to leave the conservation involuntarily.

ii. That the Ngorongoro Conservation Area Authority (NCAA) has no better

title over Ngorongoro Conservation Area land than indigenous therefore

the threat of eviction has no basis in law.

iii. That the government has misunderstood the nature of the claims in the area

by equating it to any other areas in the country.

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1.6Research Design and Methodology

1.6.1Research Design

The case study design is to be used in this research. This is an in-depth study of a

particular situation rather than sweeping in a wide range. The case study research

design helps to narrow down a very broad field of research into one easily researchable

topic. In this context Ngorongoro Conservation Area will be used as a case study, but

the research result will be useful in other places of the same nature. The case study

design is very useful in dealing or investigating trends and specific situation and

therefore it is simple to collect actual data from the study area. With this kind of

research design it is still possible to extrapolate it is results to fit an entire question.

1.6.1.1Area of Study

The area of Study in the research is Ngorongoro conservation Area, NCA is an

international renowned conservation area for its enormous wildlife, important

archaeological and paleontological remains (Alaitole footprint and Oldupai Gorge)

and it’s outstanding for pioneering multiple land use policy which is dominated by

conservation aims, but at the same time maintain a large population 6273341 of

Indigenous (Maasai, Tatoga and Hadzabe) living with traditional cattle and promote

tourism. NCA is also a World Heritage property as inscribed on the List in 197942

under criteria (ii), (iii), (iv) (vii), (viii), (ix) and (x)43.

The choice of the area as a case of study was influenced by the endless challenges

which need to be addressed. That’s to say the tensions between interest groups

(International, national and indigenous) in the area more than half a century influence

the idea of conducting this research. Ngorongoro is not an isolated case, the scenario

is a symbol of a growing pattern of land use conflict between pastoralist, minority and

indigenous on one hand and conservationist and private companies in other hands. The

same question as to the nature of the development, the tradeoff between productivity

41Tanzania National Census 2012. Although the number is disputed since the subsequent census conducted in 2013 directed by Prime minister to determine the number of NCA just one year after National Census shows that the number of people residing within NCA is beyond 87000 people 42World Heritage Committee Nomination Documentation 1979 43See ICOMOS 2010

13

and sustainability and the future of the traditional way of life all arise in all parts of the

world.

1.6.1.1.2Sampling and Sampling Techniques

It is not possible to visit all the areas and villages in the NCA covering 8292 Sq.km,

some portion within the entire NCA are to be studied to represent the entire NCA. The

research takes the form of sampling within the NCA. In selecting areas consideration

is given to geographical dispersion, high vulnerability of people and NCAA interest,

places which seems to be totally forgotten and accessibility of the area to the

researcher.

1.6.1.1.3 Sample Size

Basing on the time to which the field research is to be conducted, areas that will be

studied are small to be manageable, but larger enough to be representative for the

whole of NCA. In order to allow informed analysis the basis or representative data are

needed. It is not possible to study the whole population in the study, that is to say

i. Human subsistence (food insecurity). As the result of the

subsistence agriculture ban in the conservation area the level of

food insecurity increased drastically. In dealing with this aspect a

representative population will be selected for such purpose. In order

to study this aspect twenty households from different localities will

be randomly selected.

ii. The focus given by the NCAA to indigenous residents. One of the

problems that the indigenous people face within the Conservation

Area is that the NCAA is less taking their interest seriously. For this

fact (NCAA Community development department Headquarter)

will serve as the source of information so as to understand the actual

situation.

iii. Basic human service provision. One of the basic human rights is the

right to quality service. Despite the income drained within the

Conservation Area very little is shared with indigenous people. For

this purpose representative data from four wards (Endulen, Esere,

14

Misigiyo and Oloirobi) will be the basis of data relevant for this

context.

1.6.2 Methods of Data Collection

There are two sources to which data suitable for this research will be obtained. These

methods are primary sources and secondary sources of data collection.

1.6.2.1 Primary Data Collection

Though there is information obtained from existing academic works, the researcher

will conduct a Substantive field research to generate primary data, Participatory

methodologies will be employed such as interviews, questionnaire, focus group

discussion and observation of the life of the people using family samples.

1.6.2.1.1 Interview

An administrative survey is to be conducted with open-ended interviews with people

representing various interest groups in the NCA. Interview to be conducted are both

on groups and personal basis, NCAA officials, indigenous people, representatives of

the local communities and individuals within and originated from the Ngorongoro

Conservation Area will be interviewed. This method is preferred because it is easy to

grasp what the respondent meant. Through interviews broad information than what

was requested will be obtained.

1.6.2.1.2 Questionnaires

Questionnaires will be given to people not easily accessible to the researcher on time,

specifically the elite community of the NCA. The questionnaires will be disseminated

to respondents who are required to answer at their own appropriate time and give back

them within an agreed interval of time to allow timely data assembling. This means is

now suitable as the result of technological innovation hence nothing can be lost. The

target population is Conservation Managers within the NCA and NCA resident’s.

1.6.2.1.3 Focus Group Discussion

The researcher will facilitate several group discussions to which the participant will be

given topic of discussion with the freedom to give their own views not influenced by

the researcher, the intention is to grasp an insight on how a group think of an issue

provided, about the range of opinion and ideas, inconsistence and variation that exist

15

between themselves as the community. The objectives of the discussion will be

provided by the researcher before allowing the conduct of the debate. In every group

discussion parties excluding the researcher must be more than five and less than ten.

The researcher will maintain a neutral attitude and summarizing the sessions evenly

and fairly.

1.6.2.1.4 Observation

During field research, the researcher will take part in the studied population's

livelihood as the means of collecting more in-depth information. Observation of

peoples' way of life during the field work, some places of interest will be visited by

the researcher, though not an ecologist to draw inference of the NCA ecology which

is the basis of conservationist claims over indigenous as a threat to the delicate

ecosystem. The researcher will take part in Public meeting concerning the welfare and

future of NCA indigenous which are commonly held and the reaction toward non-

representation in the newly appointed NCAA Board of Directors not necessarily with

prior knowledge of the participants.

1.6.2.2 Secondary Method of Data Collection

Apart from field, research data collection, an extensive research is to be conducted to

peruse different documents to which relevant data will be relied. This includes the

management information system, additional materials or information from NCAA

records in Ngorongoro and Arusha offices, RAMAT law Advocate and Legal

Consultant, Mzumbe library, Legal and Human Right Centre Reports, electronic

materials and other sources.

1.7 Limitation of the Study

There are several restraints which are likely to affect the research procedures during

data collection, this include funding of the research, time constraints and language of

minority people residing within the study to whom the researcher needs to get their

idea led to difficulties in choosing the sampling area or need an interpreter which in

itself might lead to losing the content of the data. But with high integrity the research

result will be trustworthy and suitable for this context.

16

1.7.1 Delimitation of the Study

This research is strictly confined to human right precisely of indigenous people to

secure livelihood in protected areas to which Ngorongoro Conservation Area is a case

of study to reflect the situation in other places of the same nature. The rights to be

addressed are these commonly violated in the process of preserving ecological

damage. The research also reflects how people living in the rich resource region of the

world are struggling to get rid of the common tragedy of human right violation.

1.8Literature Review

As aforesaid, that the study area has a long history of tension of interest groups,

academic scholars and researchers were not left by the plane. The study about

Indigenous Rights to secure livelihoods in protected areas and related topic has

attracted many scholars, authors and institution who addressed the matter from

different point of views. The literary work relied on this research includes, but not

limited to;

Shivji, I and W. Kapinga their book titled Maasai Rights in Ngorongoro, Tanzania44.

They give a detailed analysis on the right of the Maasai resident in NCA specifically

right over land. Using authority from the decided cases, they draw a justification that

customary land right was not defeated by the creation of NCA. They were also able to

analyze the law governing the NCA in details and proposed the system to which the

NCAA should be run to assure steadfast representation.

The Authors by citing the two cases NAFCO v. Mulbadaw Village Council and 66

others45 and Yoke Gwaku and 5 Others v. NAFCO and Another46they stress that the

best solution to NCA resident (Maasai) problems is re-enactment of NCAA laws by

the parliament, they state that

The two cases illustrate a serious disadvantage of taking a general

struggle in court…” “… loosing such a case, even if on technical grounds,

or scoring partial success (for members of the community as in NAFCO

44Shivji I & W. Kapinga (1998) Maasai Rights in Ngorongoro op.cit Pp.60-68 45[1985]TLR 88 (CA) 46[1991]TLR 87 (CA)

17

cases) can disproportional strengthen the hand of Authority and will affect

the political clout and solidarity of the community….47

Such a quantum leap of the senior learned authors is unjustified inter alia, it is not

settled that if the case is to be instituted it will be crushed down as in NAFCO cases;

there are also some developments in Court independence compared to the time in

NAFCO case. Though the idea of amending the NCAA laws through parliamentary

means proposed by the Authors as an alternative to Court has truth in it may delay

justice and possibly nothing can be achieved giving regards to the history of Tanzania

Parliament to re-amend oppressive laws48 and the status of the current parliament

dominated by selfish interest49.Court petition is still the best alternative to clarify the

right to which NCA indigenous are entitled as Citizen of Tanzania and as Human

being. Any petition to be made need a very careful observation in choosing the party

to be sued between the NCAA, Government or both (Government, NCA and

UNESCO) to be joined as defendants.

They proposed the new NCAA management Board to include two traditional leaders,

each village elected representative, two women representative elected by all women

within the NCA, one representative from the Ngorongoro District Council and

Ministry respectively, who could not have the right to vote, Two representatives

elected by all NCAA workers and the Conservator appointed by the President50. It

seems that the learned authors did not address on the duties of the so called NCAA

Board of Directors, the researcher disagrees with the above findings raised by the

Authors, what could a traditional leader, village elected chairman (mostly local) help

the prosperity of the Board to administer, manage, and regulate among other things,

ecology, entry, residence, settlement in the area, tourism and national Income

generation.

Also majority of the people proposed are politician who has already proved failure in

a small Pastoral Council (PC) within NCA. One of the problems of the current Board

47Shivji & Kapinga, op.cit p.65 48 Society Ordinance now The Cooperative Societies Act, The Newspaper ACT 1976 49 During the field work the researcher did take time observing parliamentary debate during the Constitutional Parliamentary assessing on the possibility of the legislators to make a law that carry mass interest 50Shivji & Kapinga, op.cit p.68 para 3(2)

18

of Directors is not only top-down structure as argued by the learned authors, but

absence of professionalism that all persons on the Board in one way or another have a

political title, the authors were leading the road to hell in good faith. There is need to

change the current structure of the Board to which all members of the Board of

Directors are appointed by the president or the minister who is also his appointee but

not to the basis proposed by the authors.

Homewood, K and Rodgers51in their book titled Maasailand Ecology: Pastoralists

Development and Wildlife Conservation in Ngorongoro Tanzania: They give a

detailed analysis of NCA ecology which to them the local communities add to the

development of the eco-system. They observed that though no one is living in the

Serengeti National park 13 percent of the woody cover has been lost, the existing

changes in Serengeti –Ngorongoro are mostly the result of non-Anthropogenic fire,

large and small ungulates browsing and causing physical changes and water table

change. Their study portrayed a relatively successful multipurpose use following on

millennia of co-existence in these and surrounding rangelands. Their comments

following 1980 management plan were “We see no reason to expect anything other

than further successes, of course, there will be problems... and the management will

need to maintain flexible approaches to problem-solving within a system”.

What was termed to be a relative success in their study might be an oversight, in more

than half a century there was like a total failure of the aimed multiple land use, the

NCAA gives much regards to conservation values and forgetting human being. The

stressed that there are several management plans carried out within the NCA on the

future of Indigenous people and the NCAA itself but very few have been

achieved52.Being anthropologist they were interested with just the presence of people

within the NCA without thinking of their right as citizen and human being. Though

they undermine the argument of the conservationist that local people are threatening

the existence of the property they failed to analyze the proper method to which the

conflict could be resettled.

51 Homewood & Rodgers (1991) Maasailand Ecology: Pastoralists Development and Wildlife Conservation in Ngorongoro. 52Homewood &Rodgers 1991 Maasai Ecology op.cit p.77

19

Arguing that conservation and Indigenous are compatible to the extent of being run

simultaneously is not enough, arguing that the Management will maintain a flexible

approach to problem solving within the system has no basis. They acknowledge in

their work that the management plan which resulted into their work was resulted from

the secret intention of the NCAA who urge UNESCO to sponsor the mission with hope

to eliminate indigenous from the study area, they did not clarify what previous flexible

approach should be maintained.

Ian Scoones (Ed)53in Living with Uncertainty, new direction in pastoral development

in Africa. The book throw out the past assumption that pastoralism has been the basis

of environmental destruction of the dry lands. He comment that livestock populations

rarely reaches the levels likely to cause irreversible damage which is the basis of the

dispute, rather large shift in rainfall are the cause of ecological damage. The author

acknowledges that most traditional pastoral management is environmentally benign to

which he proposed the customary institutions for land management to be potential

models for future.

The author alleged that the pastoral land is uncertain and unpredictable54. He called

measures to be taken by conservationist to rescue the diminishing ecosystem as the

result of pastoral activities55. The author was unaware that many of protected areas in

Kenya, Uganda, Democratic Republic of Congo, Tanzania and most African Countries

are found within pastoral land. The person entrusted by the Author to protect the

environment and its wildlife is in fact questionable. The author is not sure as to whether

Conservationists are working real for wildlife or their own external interest. In fact,

since the introduction of a new scheme of protected areas illegal poaching has

increased and it is now threatening to wipe out some of the wildlife species.

Lissu T56in his book entitled ‘Policy and Legal Issues on Wildlife Management in

Tanzania’s Pastoral Lands. He observed that, pastoralism and pastoral land and

53Ian Scoones (Ed) (1995), Living With Uncertainty: New Directions in Pastoral Development in Africa, Intermediate Technology Publications/IIED: London. 54 Ibid p.5 55 Ibid p.7 56Lissu T (2000). The Case Study of the Ngorongoro Conservation Area: (Vol.1) Law, Social Justice & Global Development Journal (LGD).

20

resource use is completely compatible with wildlife conservation both in principle and

in practice. He further stressed that there is no scientific basis for continuing to keep

pastoral land and resource use out of wildlife protected areas such as national parks

and in some parts of the NCA which are crucial to livestock. He argues that

The argument that Maasai cattle might destroy some of the most important

natural resources and historical sites in the NCA is baseless as it is refuted

by history itself: They have not destroyed these natural resources and

historical sites in the hundreds of years before the first conservationist saw

the area and they cannot do so now.

The author argues that, the Issues of conservation, land and resource tenure are not just

technical issues to be left to conservationists and bureaucrats. They are fundamentally

political issues in which access to, and exercise of, state power becomes of critical

importance in securing one’s own or one’s organization’s interests, the researcher is

reluctant to accept his finalist political. He pointed out many tangible problems facing

indigenous people, but he has not revealed hitches ranging from limitation in accessing

the court by NCAA laws and the mechanism to which it can be rectified thus, the want

of channels through which these hurdles can be addressed arises.

Arhem, K57 in, Pastoral Man in the Garden of Eden, The Maasai of Ngorongoro

Conservation Area Tanzania. He compared Ngorongoro with the biblical Garden of

Eden not only because of it is endless beauty, but the undisputed fact of peaceful

interaction of wildlife and indigenous people and their cattle without showing any trace

of shyness". Arhem insists the scene can still be seen today. He further stated,

But, as in the Biblical story, the pastoral scene is transient. The peaceful

harmony conceals forces which threaten to shatter it. Man's own strivings

for betterment and the development and conservation policies of the state

tend to separate man and nature”. Ambitious development goals

increasingly set man against nature, and the creation of National Parks

and Game Reserves alienate indigenous people from their land by setting

it apart-as islands of nature-for international wildlife tourism58.

The author failed to analyze the cause of indigenous vulnerability to land alienation

which has its roots in their particular communal land tenure, ignorance and negative

57Arhem, K., (1985). Pastoral Man in the Garden of Eden. The Maasai of Ngorongoro Conservation Area Tanzania. Uppsala Research Reports in Cultural Anthropology: Uppsala p.9 58 Arhem, K. p.9

21

attitude of the government and donors who consistently misinterpret or disregard the

basis for indigenous land tenure system. The disdains of customary land right,

particularly communal property or collective rights, ignorance of the extensive herding

system and practice, ignorance of the adverse conservation impact arising from

alienation of bucolic land, the dominance of policies for the denationalization of

property, and ascendance of state interests over the needs of local communities as

embodied by the imposition of top down methodologies to which this work will

attempt to resolve.

Cordula et al. (Eds.), in their book titled International Handbook on Tourism and

Peace59, the Author does almost correctly when he stated that the Loliondo Game

Controlled Area (LGCA) was established in colonial times to regulate hunting and was

not a potentially protected area until in the 2009 Wildlife Conservation Act. The 2009

Act does in sly way say that GCAs are protected areas, but this happening

automatically would be totally insane and lead to mass evictions in many parts of a

country already suffering from poverty and land conflict. Fortunately the act is not that

insane, but says in section 16 (5)60 that “For the Purposes of subsection (4), the

Minister shall ensure that no land under the village land is included in the game

controlled areas”. This should have been done within 12 months of the Act coming

into effect.

Loliondo Game Controlled Area (LGCA) was never declared this new kind of

protected area, and if this would have happened or if it happens any time in the future

it would have been a human rights crime. The 2009 Act came into effect in June 2010

which makes author statement that the 2009 evictions and human rights abuses (that

he does not even mention) would have been because of this Act if possible even more

incorrect. The author talks about the Maasai, due to drought, besides the National Park

(NP) entering the LGCA where they had always been. What is true is that the drought

in 2009 increased the seasonal use and the government together with the hunting

59Cordula et al. (Eds.), (2014) International Handbook on Tourism and Peace. Centre for Peace Research and Peace Education of the Klagenfurt University/Austria in cooperation with World Tourism Organization (UN WTO):Vienna 60Wildlife Conservation Act, (Act no 5 of 2009)

22

company violently evicted people and cattle (that have since returned) when OBC’s

hunting season was up.

The land is recognized as village land (not government land that requires conservation

protection as stated by the Author) by the Village Land61, Local Government District

Authority Act62and the 2009 Wildlife Conservation Act63 has not repealed this. He

does however, state that the villages hold title deeds. Even more important is that

thousands of people depend on this land for their lives and livelihoods, and not only

those living in the 1,500km2 that the government wants to grab for the benefit of OBC,

but many other people are depending on it for dry season grazing.

61Village Land Act, (Act No.5 of 1999) 62Local Government (District Authorities) Act No.7 of 1982 [CAP 287 R.E 2002] 63 Wildlife Conservation Act. (Act No 5 of 2009)

23

CHAPTER TWO

THE CONCEPT OF INDIGENOUS PEOPLE AND THEIR RIGHTS

2.1. Introduction

Human rights protection has been part of many countries, organization and

international jurisprudence. Indigenous people are most vulnerable to face human right

violation, especially alienation of their ancestral land which is vital to secure their

livelihoods. This chapter deals with the concepts related to the indigenous right to

secure livelihoods in protected areas. It analyses the foundation of indigenous

recognition in the global and the special criterion for identifying indigenous people.

2.2 The Indigenous People

The adjective indigenous is derived from the Latin etymology meaning "native" or

"born within a certain locality or geographical area64. The concept of indigenous

peoples is indeed a human rights construct aimed at redressing specific violations of

rights linked to cultural identities, livelihoods, and cultural existence as a community.

Certain events prompted some communities to use the term “indigenous peoples” as a

way to claim specific denied rights. Had those events never occurred anywhere, the

concept “indigenous peoples” as currently understood in international human rights

law, would not have existed. There would be Maori, Aborigines, Mayas, Yanomami,

Batwa, San, Maasai, Akie, Barbaig, the Hadzabe, Ogiek, Saami, Sengwer and others,

but they would not need to self-identify as indigenous peoples, as a way to seek justice.

2.3 Indigenous People in Tanzania

There is no any piece of legislation recognizing indigenous people in Tanzania; this

means that no person is recognized by the law to be indigenous. Traditionally,

indigenous peoples have been identified by their historical continuity with pre-

invasion society. Exactly who is indigenous person is disputed, but can be broadly

understood in relation to colonialism (in this context conservationist). They are often

considered the first peoples who lived in the area before colonial or other similar

64Indigenous people http://en.wikipedia.org/wiki/Indigenous_peoples retrieved on 26 January 2015

24

powers arrived. Based on this criterion, it may be argued that the people living in the

area before the creation of protected areas qualify to be indigenous for such purpose.

As per the conceptualization of the African Commission on Human and Peoples’

Rights (ACHPR) and international mechanisms dealing with indigenous peoples'

rights, indigenous peoples in Africa are generally understood as nomadic and semi-

nomadic pastoralists and hunter/gatherers65 a concept that has been upheld in the case

of Endorois v. Kenya, where the court held the nomadic pastoralist and hunters and

gatherers to be indigenous. Based on the above criteria Maasai and the Barbaig qualify

in the first category (nomadic pastoral) and Akie and Hadzabe falling in the later

(hunters and gatherers). The African Commission’s Working Group on Indigenous

Populations/Communities has concluded that one of the primary characteristics of

indigenous communities in Africa is that they have suffered discrimination and

marginalisation.

2.4 Indigenous Rights

Indigenous rights are rights that exist in recognition of specific conditions of

indigenous people. These include not only the most basic right of physical survival

and integrity, but also preservation of land and cultural heritage that are part of

existence as people and the means of sustaining livelihoods. The right to secure

livelihood include all the basic right that a man is entitled to sustain life and any other

right which is connected to such right. Though in ordinary meaning the right to secure

livelihood has connection to very basic need such as food, shelter and clothing, this

concept has now developed to include other things not related to poverty eradication

including land rights.

Applicability of the concept of right to livelihood may include other right such as right

to property, protection and right to economic development that are vital to secure

livelihood. To protect human right is to ensure that people receive some degree of

decency and humane treatment. To violate the basic human rights on the other hand,

is to deny individual their moral entitlement, it is the sense of treating others as if they

65The “Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities”, 2011

25

are less than human and undeserving respect and dignity. Generally, human rights are

inalienable issues that any human being is entitled to enjoy.

The human right Council in October 2011 completed a Universal Periodic Review

(UPR) of the human right situation in Tanzania. On the line the Indigenous people the

report urge,

The right of indigenous people to access the ancestral lands have been

denied or limited for economic exploitation, in particular in game

reserves….. The government would be urged to reconsider it is policy to

which the notion of indigenous people is unrecognized and to take steps to

ensure their rights to practice their own culture in parity with the majority

of the population. The government should also consider developing human

right based standards, operating procedures for evictions clearly setting

it out as a matter of last resort to resolve dispute over land use between

public interest, private investors and pastoralist66.

2.4.1 Right to Life with Dignity

The right to live is understood not only as the right of all human beings to not be

arbitrarily deprived of their life, but also as the fundamental right of all people to have

access to the necessary conditions for life with dignity67. In the Bill of Rights, right to

life and it is protection is one of the most important basic rights68. Since Man has

inalienable individual rights, this means that the same rights are held, individually, by

every man, by all men, at all times. Therefore, the rights of one man cannot and must

not violate the rights of another. This means the right of conservation activist and the

state to protect the wildlife and ecology cannot be the basis of violating indigenous

rights. Human rights and fundamental freedoms are the birthrights of all human beings,

their protection and promotion is the first responsibility of the government69.

The right to life of the indigenous people in protected areas is at stake due to the

conventional methods of conservation in place. There are many instances of wild

animals having killed indigenous and their cattle, which have not been compensated70.

66 Submission from the United Nation Team, 12th Universal Periodic Review Session, The United Republic of Tanzania 67Andrea Schettini (2008)Toward a New Paradigm of Human Rights Protection for Indigenous Peoples: A Critical Analysis of the Parameters Established by the Inter-American Court of Human Rights 68 Article 14 [CAP 2 R.E 2002] 69 Vienna Declaration of the World Conference on Human Rights, 1993 70Olenasha, W. et al (2003).Indigenous peoples and protected areas in Tanzania. Marsh: Forest Peoples Programme

26

Aside from the physical killings, NCA indigenous has also been denied the basic needs

of life, including the ban on cultivation and the restrictions on grazing in some areas

have all made it difficult for the indigenous people to get the necessities of life.

Various jurisdiction have construed life to mean more than merely physical existence

to include life in the sense of being able to live as wholesome human being with all

the basic necessity for living in human dignity. This is because no person can live

without the means of living, which is the means to livelihoods. Through this broader

interpretation of the right to life, in the case of Munn v. Illinois71the Court has not only

asserted the negative obligation of the State to not illegally deprive citizens of their

lives, but it draws attention to the positive duty of the State to act and create the

necessary conditions to guarantee life with dignity for all people. The implication of

this assertion is that the ban of subsistence and all economic restriction within the area

is technically the violation of not only economic rights, but also the right to life of

indigenous people is in vain. In the line the right with dignity Nyerere was once quoted

saying;

Life is the most basic human right if justice means anything at all, it must

protect life. That should be a constant underlying purpose of all social,

economic and political activities of government of all levels. To have food,

clothing, shelter, and other basic necessities of life; to live without fear;

to have the opportunity to work for one living; freedom of association, of

speech, and of worship. All these things together are the basic principles

of living as a whole person in ‘freedom and justice72.

The Tanzanian Court has not had the opportunity to consider Article 1473 on the right

to life in the line of positive duty of the state. But there is no reason why they should

not find persuasive the Indian authorities Munn v. Illinois74and pronouncement of

Nyerere, who has been previously quoted by the Court in their judicial pronouncement

concerning Nyerere doctrine of land value in the case of AG v. Lohay Akonaay75 if the

matter goes to court. Chris Maina put it clear when he states

71 94 US 113 (1877) 72Shivji and Kapinga op.cit p.38 73 [CAP 2 R.E 2002] 74 94 US 113 (1877) 75 1994

27

National and international documents on human right seem to concentrate

on one aspect of the right to life only, which is the right of the individual

to be safeguarded against external aggression which threaten to

arbitrarily harm the physical body and extinguish life itself. However,

there is the second and equally important aspect of the right to life which

is expressly addressed either by legal instrument or human right expert.

This relates to the nourishment of the body which contain and maintains

life itself. This entails caring of the body to ensure that life continues by

the provision of food, shelter and other need of the body76.

2.4.2 Communal and Collective Right to Property

The right to property is one of the controversial rights that indigenous people are prone

and vulnerable to be deprived of through massive land grabbing77. As stated in

Endorois case afore stated indigenous people are more connected with the land and

without collective right to land no right to secure livelihood can be achieved. The right

to property is recognized in different national land international legislation. The

entitlement of right to property has been addressed in different international

instruments including the Universal Declaration of Human Rights which state

“Everyone has the right to own property alone as well as in association with others

and no one shall be arbitrarily deprived of his property78”

The threat to the indigenous right to properties includes both physical and personal

property such as land, which is the basis for their livelihood. The common eviction

from ancestral land with no compensation amount to a violation of property and it is

enjoyment that is also enriched in the Constitution. The problem with the right to

property is that they are not absolute and states have a wide degree of discretion to

limit the right to property in the public interest. The principle of the right to property

76 Maina, P, C (1997) Human Rights in Tanzania: Selected Cases and Materials. Koln: Koppe 77The Tirana Declaration was adopted by the International Land Coalition’s Assembly of Members on 27 May 2011. Tirana Declaration defines ‘land grabbing’ as ‘acquisitions or concessions that are one or more of the following: ... (iv) not based on transparent contracts that specify clear and binding commitments about activities, employment and benefit-sharing...’ (para. 4).Seehttp://www.landcoalition.org/fr/node/1109. 78 Article 17 of Universal Declaration of Human Right of 1948

28

is recognized by the Constitution of United Republic of Tanzania per Article 2479

which states that

(1) Every person is entitled to own property, and has a right to the

protection of his property held in accordance with the law. (2) Subject

to the provisions of sub article (1), it shall be unlawful for any person to

be deprived of his property for the purposes of nationalization or any other

purposes without the authority of law which makes provision for fair and

adequate compensation.

Though the Constitution allows compensation whenever the state wishes to

alienate it for the public interest, no compensation has been or is likely to be given

to indigenous in protected areas for the possible eviction in the future. From 1959

Serengeti eviction to Mkomazi in 1980’s eviction compensation after eviction

from ancestral land proved to be forgotten. Even the now Loliondo dilemmas are

likely to end the same way.

2.4.3. Right to Free, Prior and Informed Consent

Free, prior and informed consent (FPIC) refer to the rights of the local communities,

particularly indigenous people participate in the decision making about issues

impacting them. The principle of FPIC within international development is most

clearly stated in the United Nation Declaration of Rights, Indigenous people per

Article 1080 which state that, “Indigenous peoples shall not be forcibly removed from

their lands or territories. No relocation shall take place without the free, prior and

informed consent of the indigenous peoples concerned and after agreement on just and

fair compensation and, where possible, with the option of return81”.

Indigenous people in Tanzania do experience non-involvement in the decision that

have negative to their livelihood and this is evidenced in the ongoing claims by people

within the NCA. Even in the few instances which purported to be consulted to decide

on their fate, the selected representative has biased chosen. The emergence

multinational investment companies and the new conservation idea find indigenous

79 [CAP 2 R.E 2002] 80The United Nations Declaration on the Rights of Indigenous Peoples of 2007 (Report) available at http://undesadspd.org/indigenouspeoples/declarationontherightsofindigenouspeoples.aspx Retrieved on March 16, 2015 81Ibid

29

land with threat to be evaded by the new regime. FPIC is therefore more than just a

process of consultation. It is about a negotiated process involving all interested parties,

the aim of which is to allow Indigenous Peoples to either give or withhold their

consent.

Although there is a certain amount of consensus between governments, NGOs and

companies on the need for free, prior and informed consultation with Indigenous

Peoples in negotiation and decision-making processes, the concept of consent is not

universally accepted. This concept entails that people are able to freely make decisions

without coercion, intimidation, punishment or manipulation and such decision is made

within the sufficient and reasonable time with information on the probable impact of

their decision.

2.4.4. Right to Economic Development

All spheres of life, particularly for economic development are subject to intolerable

limitation in protected areas. Though the law governing the protected areas especially,

the Ngorongoro Conservation Area Act, Game Controls areas Act allows people’s

settlement within the protected/reserved land, these people are subject to limitation

that are likely to threaten their existence. For example the ban of subsistence

agriculture in Ngorongoro Conservation Area for years now is not only threatening

indigenous existence, but that physical existence has been widely reported to have

been lost as the result of hunger.

On their Press Release, 21 December 2012 pastoralists’ civil society organizations on

the state of hunger and starvation in the Ngorongoro Conservation Area (NCA) Titled

“Tanzania: Hunger in a World Heritage Site. Where is the World?82”. The laws and

82The information stated “We, CSOs representing the interests of pastoralists in Tanzania are deeply disturbed by widely circulating news that people have died of hunger and a face a multiplicity of other hunger related complications in Ngorongoro Conservation Area. It is reported that children and adults have died of hunger and malnutrition in the Ngorongoro Conservation Area in the last few years. While the exact number of children and adults who have died has not been ascertained for lack of a systematic survey, it is irrefutable that indeed people have died of hunger in Ngorongoro Conservation Area. According to authoritative information from Endulen Catholic Hospital, 14 children were admitted at the Hospital in November 2012 on the grounds of acute malnutrition. In May 2011, a deadly outbreak of Measles hit the whole of the conservation Area affecting some 1,000 children. The Government denied the death of 200 children reported by village authorities, reducing the number to

30

policies in protected areas allow indigenous settlement within the park, but any

residential premise development is subject to conservator consent to which he is not

bound to grant. These myopic policies increased vulnerability of indigenous people to

poverty and to poor livelihood.

2.4.5. Right to Access Legal Avenues

At the outset the right to access the court is not falling under the category of right to

secure livelihoods, the right to access the court come up when the need arise to enforce

these rights to livelihoods in the court of law. Access to justice and legal avenues

requires the ability to seek and obtain remedies for the wrongs or violation done by

one person, body of person, institution or states to one person or the group of person

through the institution of justice such as court of law in conformity with human right

standards. Under international law, everyone has the right to an effective remedy when

their human rights are violated. Without access to remedies, human rights mean very

little.

Remedies must be accessible, affordable and timely, and should provide justice for

victims of violations. Access to justice cannot be examined in exclusion of other

human right issues inclusive procedural fairness and substantive fairness for equitable

remedies for violation of indigenous basic rights.

A particular dimension for need of justice relate to overcoming long standing historical

injustice in relation to dispossession of indigenous peoples land, territories and

resource. Injustices of the past that are not remedied constitute a continuing affront to

the dignity of indigenous. Unfortunately the law governing protected areas does not

allow person affected by conservation policies or by any decision of the authority to

access the court to seek their rights even if such violation is threatening his life or

livelihood and that no court of law can overturn the decision of the Board or the

minister, Section 14B(2)83which states “Subject to the further appeal provided for by

this Act, the decision of the appeals authority (NCAA or the Minister) and any decision

only 19 available at http://www.iwgia.org/news/search-news?news_id=732 Retrieved on 26 march 2015 83 S.14B (2) [CAP 413]

31

made by it shall be final and binding upon all parties concerned, and shall not be

subject to review by any court”.

2.5 Conclusion

In conclusion, on the matter of the protection of the right to property, especially the

collective right of indigenous peoples in the jurisprudence of the court seems to be

uncertain and not yet clear. The construction of a new paradigm for the protection of

indigenous rights, therefore, reveals the need to understand the communal property of

ancestral territories as an institution with its own characteristics, based essentially on

the specific relationship of these people with the land and necessarily analysed in

conjunction with their customs and traditions.

32

CHAPTER THREE:

LEGAL AND INSTITUTIONAL FRAMEWORK

3.1 Introduction

This chapter examines the legal and institutional framework dealings with human

rights precisely indigenous rights to secure livelihoods in protected areas in Tanzania.

The response of the court toward protection of right of vulnerable groups, including

indigenous people is given emphasis to see how the judiciary has dealt with human

right thematic and the lesson that can be learned from these cases. This chapter needs

to inform the reader indigenous rights and the best way of upholding them. Municipal

laws and international Instruments that could help to defend indigenous rights will be

considered. The chapter therefore gives a broad discussion on the laws and Institution

dealing with indigenous people and their rights.

3.2 The Legal Framework

There is no a precise law recognizing indigenous people in Tanzania, unfortunately

the country is a signatory of international instruments dealings with indigenous and

their rights84. Under this part, different statutory provisions will be examined to show

the extent to which indigenous right is protected and in case of violation the degree of

such violation and the mechanism to readdress/remedy the existing defect. Also

differed draconian laws have been the threat to indigenous people right to secure

livelihoods will be examined and where possible to propose the mechanism through

which these hurdles could be rectified. Also, different decided cases will be analysed

to show the position of the Court when dealing with human right issues.

3.2.1 The Constitution of United Republic of Tanzania 1977

The Constitution of United Republic of Tanzania 197785contain no Article that

recognizes indigenous people leave alone their rights, however, under the Bill of

Right86 several right to an individual are protected, therefore it can be said that

common right of indigenous people are also protected. The Constitution recognizes

84United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly adopted on 13 September 2007 85[CAP 2 R.E 2002] 86 Article 11-29 Ibid

33

and preserve the right of individuals than of the group or society which has been the

breakdown for indigenous people whose livelihoods is mostly communal. One of the

important modes of livelihood of indigenous people is transhumance which assumes

the freedom of movement a right protected under Article 17 (1)87, through this

provision the movement in search of pasture, water or salt for their cattle is also

protected by the law. On the other side The Constitution recognizes and preserve the

rights of the individual than of the group or the society and this has been the breakdown

for indigenous people whose livelihoods is mostly communal. Even the rights

protected under the Bill of Right are subject to derogation88.

However, this shortcoming has been addressed in the new proposed Constitution if it

will be voted in affirmative in the referendum. The newly proposed Constitution has

some development regarding the right of Indigenous people, the recognition and

respect of pastoralist and pastoralism as a legitimate mode of livelihood in Tanzania

per Articles 13 (1), (2) (b) (c) (d) and 23 (2) (c)89 is a step forward toward the

preservation of their rights. Also, hunter gatherers and hunting and gathering has also

been recognized and respected under the provision of Article 23 (2) (c)90 therefore if

the proposed Constitution will be voted in the affirmative then the defence of

indigenous rights could be smoother than before.

3.2.2 Land Acts91

Before the advent of the land Act, 1999 the legislation which was coordinating all

aspects of the land was the Land Ordinance of 1923. This law declared all land as

public land and no person had the right to possess the land other than the right to use

the land. All land was vested in the Governor and later the president after

independence. There are two types of rights recognized by the Land Ordinance and

subsequently by the Land Act, namely customary right of occupancy and the granted

right of occupancy.

87 Ibid 88Article 30 ibid. Also see Basic Rights and Duties Enforcement Act (CAP 3 R.E 2002) 89 The United Republic of Tanzania Proposed Constitution 2014 (not yet Promulgated) 90 Ibid 91 United Republic of Tanzania, Report of presidential Commission of Inquiry into Land Matters Volume I 1994, Para 18, p.2, Cap 113 RE 2002 and Act No 4 of 1999

34

Tanzania’s land laws recognize the village as having the mandate to hold customary

land on behalf of different groups. While this designation is not a problem to

indigenous pastoralists in their traditional districts in which they constitute the

majority numerically as in Ngorongoro, it is a serious impediment to the realization of

indigenous hunter-gatherers’ land rights. In addressing the impediments of the

indigenous hunters-gatherers as the result of emerging village land Dr Elifuraha

Laltaika has this to say

Hunter-gatherers constitute the minority in all villages in which they live,

based on engaging collectively in a livelihood option that is different from

those of the dominant groups. Consequently, hunter-gatherers’ total

number defeats any efforts by the group to challenge decisions that affect

them both at the village council and in the village assembly. For example,

whereas hunter-gatherers may need to retain a village forest from which

the community can gather fruits and hunt wild animals, the majority

farmers may successfully influence the passing of a decision authorizing

clearing of the forests in question for the purpose of expanding farmlands

hence undermining land rights of the minority hunter-gatherer groups92.

Land and land rights have a very real impact on almost all aspects of social and

economic development of indigenous people. Pastoralist land tenure has been the

subject of speculation and turbulence from the colonial trough the independence era

and the subsequent legislation never rectified it93. The land policy of 1995 addresses

the tension facing indigenous people to secure land as the means of secure livelihood

without giving straight forward mechanisms to secure pastoral land tenure94.

The major concern of the policy makers in the land law reforms has been the tensions

between on the one hand, freedom to deal with the land in the market and on the other,

security of tenure or protection of users and occupiers of land (including indigenous

people)95emphasis added. With regard to the nature of pastoral community, they need

a vast area for grazing and some time to practice transhumance, but surprisingly the

policy is silent on it96. Land administration is at various stages of breakdown; one’s

92Laltaika, E (2015)The Village Land Act has come of age: examining the legal protection of hunter gatherer groups’ land rights in Tanzania 93Kennedy, G.(2007).The Impact of Tanzania New Land laws on the customary Land rights of Pastoralists p.21 94Fimbo, G. (2003), Land Law Reforms in Tanzania. p 4 95 Ibid 96Olengurumwa, O 1990’s Tanzania Land Laws Reforms and its Impact on the Pastoral Land Tenure A Paper presented during Pastoral Week at Arusha from 14th-16th February, 2010

35

certain conclusion would be that the enactment of the Land and Village Land Act

provides no significant improvement on the legislation it replaces97.

3.2.3 Basic Right and Duties Enforcement Act

The Basic Right and Duties Enforcement Act98 as the name suggest was enacted

purposely for the enforcement of the Human Rights in Tanzania, among other things,

the Act is said to direct the institution of Human Rights cases in Tanzania. The Act has

managed to establish procedural for the person to file complaint concerning human

rights in Tanzania, however the Act has been a problem in one way or another for the

enforcing basic rights in the country as it establishes the cumbersome procedures for

a person to have its case determined before a court of law. Under Section 8 (3)99the

Act states, “The court may strike out any case if it satisfies that the application is

brought under Article 12-29100 of the Constitution are likely to contravene with the bill

proposed at the date of the application”. People’s right might be violated for such a

particular period of time when the law prevents the proceeding of the case for the

possibility of contradicting the proposal of the bill. This cannot be termed as advance

of justice rather the grabbing of the rights which are guaranteed to the individual

person.

3.2.4 Wildlife conservation Act101

The Wildlife Conservation Act No 5 of 2009 hereinafter termed as WCA is the main

legislation governing wildlife in areas outside National Parks. This is the recent law

governing protected areas in Tanzania, until 2009 Game Control Areas are not as such

potentially protected areas, but the 2009 Act does in sly way say that Game Control

Areas are protected areas, but provide that, “For the Purposes of subsection (4), the

Minister shall ensure that no land under the village land is included in the game

controlled areas per S.16 (5)102” and this should have been done within 12 months of

the act coming into effect. The provision of this Act has been misunderstood by the

97Shivji, I.G. (1998). Not Yet Democracy: Reforming Land Tenure in Tanzania, International Institute for Environment and Development (IIED), HAKIARDHI Land Right Research & Resources Institute and the Faculty of Law, University of Dar es Salaam, Dar es Salaam. 98[CAP 3 R.E 2002] 99 Ibid 100[CAP 2 R.E 2002] 101[Act No 5 of 2009] 102Ibid

36

enforcement machineries and has been the basis of the frequent attempt to grab village

land in Loliondo for hunting purpose.

For the purposes of conservation and utilization of wildlife, the WCA places the non-

park wildlife sector into three main categories; the first category is established under

Section 8103, where the President has power by order published in the gazette to declare

any area a game reserve. The second category is created under section 9 of the Act,104

which empowers the minister responsible for wildlife, by order published in the gazette

to declare any area of Tanzania to be a game controlled area. The other category is

created under section 16105 through which the Director of wildlife, may by order

published in the gazette, declare an area of Tanzania to be a partial game reserve

(protected animals.) The consumptive use of wildlife can be done in those categories

with permission of the Director of wildlife who is a chief executor of the WCA and /or

the President under section 3 of the Act106.

For the conservation of wildlife, the wildlife conservation Act establishes protected

area with restriction on access to and utilization of wildlife resources, generally, save

where they are specifically legislated upon, as it is the case with those found in

Ngorongoro Conservation Area and National Parks.

3.2.5The Ngorongoro Conservation Act, 1959 [R.E 2002]107

This is the special Act governs every aspect of life within the NCA. The Act has been

the source of Indigenous vulnerability within the NCA. For indigenous, the violation

of human right is in two forms, by the restriction of the means of sustaining life108 and

livelihoods and restriction of accessing the court upon any violation by the superior

authority. The Act109 states, the decision of the appellate board is final and conclusive

and not court of law can overturn it. The Act also by its provisions recognizes only the

Maasai who is the majority in the conservation Area as indigenous of the place, leaving

Barbaig and Akie with no legal basis to claim their ancestral land. The provision of

103[Act No 5 of 2009] 104ibid 105ibid 106 Ibid 107Cap 284 108 S.8 ibid 109S.14B (2) ibid

37

S.9A110, impliedly show that the pasture land is not protected by the Act, despite it

being the basis of livestock consumption which is the sole economic activity of

Indigenous people.

3.2.6 National Parks Act

The National Parks Act111 is the main legislation governing national parks in Tanzania.

It provides for their establishment, regulation and management and other purposes

related thereto. The Act empowers the president with the consent of the parliament by

proclamation in the Gazette to declare any area of Tanzania to be a national park112.

The provision of this section means that the president and parliament affirmation for

the declaring a certain chunk of land to be a National park is final and conclusive even

without consultation of the local people occupying the place so declared to be a

National Park. The Act does not provide any inclusion of the people in the process of

forming the National Park. At the first place the right of indigenous people to access

their ancestral land within the National Parks was upheld in the 1948 National Park

Ordinance as per Director of Tanganyika National Parks v. Ngutata Lesila& Mario

Aluka113, where the court held that

The rights of pre-existing pastoral societies within the parks were

recognized by the law”. The Judge further held the sheep killed by the

Rhinoceros were lawfully within the park, any person born or found before

the establishment of the park before the National Park Ordinance of 1948

has the right to self-defence and defending of their livestock against

animal attacks.

From 1959 the new legislation excluded man from the wildlife and the customary right

of indigenous people within the parks was eliminated. Therefore the pre-existing

customary rights of indigenous were no longer recognized by the subsequent

legislations114.

3.2.7Case Law

The judiciary has responded to human right thematic in two dimensional paradigms,

despite of uncertainty in it is decision, it cannot be ignored that court has been an

110 Ibid 111[Cap 282 R.E 2002] 112S.3 Ibid 113 [ 1953-1957]volume II TLR 148 114 S. 6(1) CAP 282 op.cit

38

important institution in the struggle for human rights including vulnerable groups to

which indigenous people belongs. In the case of Ole Njogo and Others v. A.G of the

British East Africa115, the case with the same material fact with 1959 Serengeti

eviction, Morrison J argued that “treaty could only be entered into with an independent

sovereign state, which the Maasai had ceded when the East African Order Council

1902 came into operation in the Protectorate”. In the ambit of supra Morrison holding

an inference can be drawn that the 1959 Anglo Maasai agreement with no free, prior

informed consent always used by the conservationist to justify their ill eviction intent

has no basis in law.

Court in several cases has upheld the customary land right to be equal to the

documented granted right of occupancy as held in the case of Methuselah Paul

Nyagaswa v Christopher Mbote Nyirabu116 the court held that, “a holder of a right of

occupancy under native law and custom does not automatically become a squatter

when an area is declared a planning area”. Mbote Nyirabu case (supra) is in the line

of the decision in the case of AG v. Lohay Akonaay and Joseph Lohay117.

On the other side of the coin, court played a very passive role in protection collective

right which is common to indigenous people. The struggle for the collective right seem

to be at the beginning within the jurisprudence of the courts, which raise a fear of

taking the general struggle for community right in the Court of law, To show how the

court is sometime uncertain in promoting human right in the case of Ako Gembul Ako

Gembul & 100 Others vs. Gidagamowd & Waret Farms Ltds & NAFCO118 it was held

that “the Government has priority in Food Security and the acquisition of the Barabaig

Land is proper, as national interest overrides all other interests”. Also the case of

Lekengere Faru Parutu Kamunyu and 16 Ors v. Minister for Natural Resources,

Tourism and Environment, the Director of Wildlife Division, Project Manager of

Mkomazi Game Reserve and The Attorney General119 shows how the law has been

115 Civil Case No. 91 of 1912 Court of Appeal for Eastern Africa [1913], 5 E.A.L.R. 70. Text of judgment (May 1913) 1161985 TLR 103 (CA) 1171995 TLR 80 (CA) 118HC Arusha 12/1989 Unreported 119[2000] TLR 160 (CA)

39

used to justify evictions in conservation areas and how authorities fail to compensate

indigenous pastoral society when wrongful eviction has been proved.

Mkomazi case shows that the legal provisions and procedures has frequently been

ignored when traditional land is at risk of being grabbed due to changes in policy,

administrative or for development purposes. This case also guarantees that deemed

right of occupancy in some cases is treated inferior compared to granted right of

occupancy. In interpreting the law courts have been narrowing the spectrum of

traditional land use.

The use of legal technicality has been the bar of accessing the court when the

community rights are being sought. In the case of National Agriculture and Food

Corporation (NAFCO) v. Mulbadaw Village & Others120where the court held “the

Barbaig Pastoralists are not falling under the category of Native in Tanzania” despite

the bare fact they are found nowhere else on the Earth than in Tanzania. Therefore, to

court jurisprudence, it is not only indigenous meaning which is subject to questions,

but even the well documented native people.

In the case of Yoke Gwaku & 5 Others v. National Agriculture and Food Corporation

(NAFCO) &Another121the issue was as to who are covered by the Court relief, the

court held “Only representative to the suit are the one covered by the court relief”.

Despite the fact that the court acknowledge that the grabbed land is inhabited by many

indigenous pastoral communities who in most cases occupy the land communally and

collectively. It is worth pointing out that, the position of the court on reparations has

been subject to criticism, because although it recognizes the collective character of the

communal property of indigenous peoples, it maintained for a long time a traditional

position that was limited to declaring a human rights violation and its respective

reparation only in relation to the members of the communities individually, without

doing the same, explicitly and directly, in relation to the indigenous community as a

collective and an independent subject.

120Civil Appeal No.3 of 1986 (CA), Dar es Salaam(Unreported) 121[1991] TLR 87 (CA)

40

Attempt to take the general struggle to court is subject to Trepidation because of

uncertainty of the court when dealing with community right, the case of Kubenea v.

AG122 the court held, inter alia, “it’s not our job to protect people from the consequence

of their political choice”. This has been a predicament of taking the general struggle

for community rights in the court of law, no one is sure of the certainty of court

decision especially in cases of public interest. The danger is if the court as in Kubenea

case for cases including vocal and civilized people it is likely to be a predicament for

less vocal and marginalized indigenous to claim their rights through court of law. The

line of KUBENEA’s case decision is the one referred by the distinguished Common

law, Judge Lord Denning in the case of Metropolitan Properties Co (FGC) Ltd v

Lannon123when he state “…justice must be rooted in confidence and confidence is

destroyed when the right minded thinking member of the society goes away thinking

the Judge was biased”. Indeed the case of Kubenea v. AG124, reveal how court

sometimes goes away from it is cardinal principles of justices.

3.3The Institutional Framework

3.3.1 International Institutions

There are different international organizations or institutions that have been put in

place to protect the right of indigenous people either worldwide or regional level or

even national wide. Others have broad operational motives other than the indigenous

people’s rights, but their policies affect the broad interest of indigenous people. Some

of international Institution that has long been standing for Indigenous Peoples' rights

include but not limited to:

3.3.1.1 United Nations Permanent Forum on Indigenous Issues

This is the UN's central coordinating body for matters relating to the concerns

and rights of the world's indigenous people. The Declaration of Indigenous People

establishes a universal framework of minimum standards for the survival, dignity,

well-being and rights of the world's indigenous peoples. The forum is an advisory body

within the framework of the United Nation System that reports to the UNs Economic

122MISC. CIVIL CAUSE NO. 28 OF 2014 (Unreported) p.18 123[1969] 1 QB 577 124MISC. CIVIL CAUSE NO. 28 OF 2014 op.cit

41

Social Council (UNECOSOC). The Declaration of indigenous rights addresses both

individual and collective rights, cultural rights and identity, rights to education, health,

food, among others as the form of Indigenous livelihoods. It outlaws discrimination

against indigenous peoples and promotes their full and effective participation in all

matters that concern them125.

3.3.1.2 International Union Conservation of Nature (IUCN)

Indigenous peoples have often been unfairly affected by conservation policies and

practices, which have failed to fully understand the rights and roles of indigenous

peoples in the management, use and conservation of biodiversity. IUCN has been

lobbying for inclusion of indigenous people in the management of the protected areas.

International Union Conservation of Nature World Conservation Congress (IUCN

WCC) resolutions126 emphasize indigenous peoples' rights to lands, territories, and

natural resources on which they have traditionally subsisted, it acknowledges that

Indigenous peoples and local communities, both sedentary and mobile, have for

millennia played a critical role in conserving a variety of natural environments and

specifically for economic cultural, spiritual and aesthetic purposes. ICUN also

recognize that there are today many thousand Indigenous and Community Conserved

Areas (ICCAs) across the world and acknowledgement of their role in the conservation

of biodiversity. They advocated the governments to integrate them into their official

Protected Area Systems in their municipal laws127.

Furthermore, they recognize that indigenous peoples possess a unique body of

knowledge relevant for the conservation and sustainable use of natural resources. This

has been done in the line of international instruments such as Agenda 21128,

ILO129Convention, and the UN Declaration on the Rights of Indigenous Peoples just

125http://www.un.org/press/en/2007/ga10612.doc.htm Retrieved on March 25, 2015 126UCN Resolutions and Recommendations publications from previous IUCN General Assemblies and World Conservation Congresses https://portals.iucn.org/library/sites/library/files/documents/WCC-5th-005.pdf Retrieved on march 24 2015 127https://iucn.org/about/union/commissions/ceesp/topics/governance/icca/ Retrieved on March 25, 2015 128 United Nations Conference on Environment & Development Rio de Janeiro, Brazil, 3 to 14 June 1992 AGENDA 21 129International Labour Organization (ILO), specialized agency of the United Nations (UN) dedicated to improving labour conditions and living standards throughout the world. Established in 1919 by the

42

to mention a few. As far as indigenous within NCA are concerned the bitter side of

IUCN were first seen in the late 1980s, when IUCN declared NCA to be the heritage

which is the basis of reintroduction of restrictive policies that are threatening the

livelihood and the right to life in particular up to date.

3.3.1.3 African Commission on Human and People’s Rights (ACHPR)

The African Charter on Human and Peoples’ Rights and its jurisprudence on the

concept of “Peoples” take the view to recognize indigenous collective rights,

formulated as rights of “peoples”, the intention is to make these right available to a

section of the population within the national state including indigenous people.

Through its ruling in ENDOROIS CASE the commission categorized indigenous

people in Africa to be nomadic pastoral societies, hunters and gatherers130. The

constant and concerted lobbying by NGOs did not only get the attention of the African

Commission, but also convinced it to adopt a resolution establishing a Working Group

on the Rights of Indigenous Populations/Communities (the Working Group).

This helped to examine the concept of indigenous populations/communities in Africa,

Study the implications of the African Charter on Human and Peoples’ Rights (the

African Charter or the Charter) on the well-being of indigenous communities and

consider appropriate recommendations for the monitoring and protection of the rights

of indigenous populations/communities. The enforcement of Human Right under the

Commission is not automatic as held in the case of Alberto Capitao v. Tanzania131,

where the commission stated “the enforcement of rights is subject to the exercise of

the local Remedies”.

3.3.1.4 International Work Group for Indigenous Affairs (IWGIA)

They address the reasons why and the means by which the African Commission

should deal with the protection and promotion of the rights of indigenous peoples in

Africa. IWGIA analyses the unwarranted human rights situation of indigenous peoples

Treaty of Versailles as an affiliated agency of the League of Nations, the ILO became the first affiliated specialized agency of the United Nations in 1946 130Decisions of the African Commission on Human and Peoples' Rightshttps://www1.http://www. hrw.org/news/2010/02/04/kenya-landmark-ruling-indigenous-land-rights.umn.edu/humanrts/africa/comcases/comcases.html Retrieved on 3rd March, 2015 131African Commission on Human and Peoples' Rights, Comm. No. 53/91 (1995)

43

in Africa that calls for the urgent intervention of the African Commission on Human

and Peoples’ Rights. They put emphasis on analyzing violation of the right to land and

productive resources, experiences of discrimination, denial of justice, violations of

cultural rights, denial of Constitutional or legislative and political recognition and

marginalisation from social services132. The analysis provides concrete examples of

experiences of indigenous groups from all parts of Africa. They devote on the

discussion of the possible criteria for identifying indigenous peoples in Africa.

3.3.2 Municipal Institutions

Because of non-recognition of Indigenous in municipal law, there is no even a single

Statutory Institution that has been created to regulate the welfare of indigenous people

in Tanzania. This does not mean that the statutory Institution dealing with human rights

exclude the claims of indigenous people whenever tabled before it. Besides the

Statutory institution, there are Civil Societies Institutions that have long been lobbying

for the recognition of indigenous people in municipal law.

3.3.2.1Commission for Human Right and Good Governance

The commission for human right and good governance was established in 2001 under

article 129-131 of the Constitution of the United Republic of Tanzania133 and the

commission for human right and good governance Act134. The Commission has a

broad mandate of promoting awareness of human right and to investigate violations.

Despite the fact that it was created to defend the rights of people from unlawful

violations very little has been done. The mandate given by the law to this commission

to investigate, hearing of complaints and initiate fresh suit against the violators’

success are still limited and the work of defending the citizen's right has been left to

non-governmental organization such as Legal and Human Right Centre hereinafter

referred as LHRC.

3.3.2.2Ngorongoro Conservation Area Authority (NCAA)

The Ngorongoro Conservation Area Authority is a public corporation established

under the Ngorongoro Conservation area Act. It is managed by the board of Director

132http://www.iwgia.org/regions/africa/indigenous-peoples-in-africa retrieved on 28 February, 2015 133 Cap 2 R.E 2002 134 Cap 391 R.E 2002

44

provided under S. 4135 appointed by the president. Ngorongoro Conservation Area

Authority NCAA was established under section4 of the Ngorongoro Conservation

Area Act. The NCAA is charged with the responsibility to regulate the indigenous

livelihoods, tourism activities and protection of wildlife. Under section 4 (1) of the Act

provides for legal status and capacity of the Authority that “the Authority shall be a

body corporate with perpetual succession and a common seal and shall, in its corporate

name, be capable of suing and being sued”. The decisions of the Board for the time

being have been the threat to indigenous survival, the ban of subsistence agriculture

and attempt to relocate thousands of indigenous people within the area has provoked

legal issues that need an urgent response to rectify them.

3.3.2.3 Civil Society Organization (CSO)

The statutory creature commission against violation of human right has proved to be

ineffective and the role of protecting human rights has been left to Civil Society

Organizations. These CSO are operating in national wide while the rest operates in

regional or certain geographical section of the country. The civil societies Organization

has long been the lobbying for protection of human rights, including the right of

indigenous people. The notable CSO for indigenous people protection include, but not

limited to Pastoral Indigenous Non-Governmental Organizations (PINGOS), Legal

and Human Right Centre (LHRC), Tanzania Human Right Defenders Coalitions

(THRDS), Oxfam GB, ERETO-DANIDA-NPP136 and Ujamaa Community Resource

Team (UCRT) just to mention a few. These institutions have either been advocating

for human right including indigenous (pastoral, Hunters and gatherers) people or

restocking pastoral society as the result of famine caused by narrowing of the grazing

land as the result of expansion of protected areas137.

They empower marginalized people in the rangelands of northern Tanzania to secure

rights to their natural resources and land in order to improve their livelihoods and the

135 Cap 413 op.cit 136 ERETO is a civil society and non-charitable Organization that has been restocking Indigenous people in Ngorongoro District particularly within the Conservation Area to enable them to sustain life and livelihood 137http://www.pingosforum.or.tz/index.php/43-news/latest-news/134-tanzania-s-statementon-the-un-permanent-forum-on-indigenous-issues retrieved on 25th March, 2015

45

ability to conserve their resources. These Civil Society Organizations work with

indigenous communities to expand their ability to ensure that national policy and legal

processes underpin their rights and development needs. The like of UCRT aims to

promote more resilient, egalitarian and sustainable communities that are responsible

for their own development, and better able to benefit from and steward their

environment for future generations138.

3.4Conclusion

This chapter has briefly made some critical analysis of the national and international

law instruments, institutions and organizations which protect or has an impact on the

right of indigenous people to secure livelihoods. Given the economic development

models of privatization and globalization adopted by African countries and Tanzania

in particular, one of the phenomena that should be receiving more attention is state and

private intervention in indigenous areas for the execution of hunting blocks,

conservation policies, large-scale infrastructure and bio prospecting projects. Driven

by these motives, Tanzania and multinational companies repeatedly violate the rights

of indigenous peoples and, consequently, place their integrity and survival at risk. On

the basis of this backdrop, this paper proposes to demonstrate the need for the adoption

of a new inclusive and intercultural paradigm for protecting the human rights of

indigenous peoples in Tanzania.

138http://www.maliasili.org/our-partners/ujamaa-community-resource-team/ Retrieved on March 19, 2015

46

CHAPTER FOUR

DATA ANALYSIS AND FINDINGS OF THE RESEARCH

4.1 Introduction.

In the course of undertaking this research report for Indigenous Rights Tanzania, a

case study design was employed and Ngorongoro Conservation Area acted for such

purpose, in this regards various places within the Ngorongoro Conservation Area and

even out of the study area were visited. It involved visiting such places such as six

villages within the NCA, NCAA offices in Ngorongoro and Arusha, Loliondo,

PINGOS and RAMAT Law and Legal Consultant situated in Arusha. This chapter

presents various findings collected from the field in connection with the research topic.

The purpose was to obtain information and data relating to indigenous right,

particularly in protected areas.

As noted above, the gathered information and data were obtained through primary

method of data collection such as, interview, questionnaires, focus group discussion

and observation. Secondary method of data collection such as library research, media

(newspapers and Television broadcasting) and electronic sources was used to collect

relevant data suitable for this research. The respondent range from human right

stakeholders, civil Society organizations, advocates, NCAA management officials and

indigenous people of the researched area, the study therefore managed to get a total of

fifty four respondents.

Different Philosophers argues that human right are not necessarily found in the rules

but in the interpretation of the fact before the court by applying the rules, to this

assertion this research consider different decided cases concerning human right or

from which the court ought to give an interpretation concerning human right but at last

decline to give the same. Several aspect regarding the right to livelihoods are

considered at length to ascertain the extent to which indigenous right are violated being

it directly or indirectly, purposely or as an oversight, being it strategically or any

intentional or non-intentional aspects.

47

Table I. Cases showing the response of court to Indigenous right thematic

Parties Year Court Court Response

Ole Njogo and

Others v. A.G

of the British

East Africa

1912 EAC

A

Treaty could only be entered into with an independent sovereign

state

National

Agricultural

Food

Corporation v

Mulbadaw

Village Council

& others

1985 CAT The Barbaig Pastoralists are not falling under the category of Native

in Tanzania

Yoke Gwaku

and others v

NAFCO and

others

1988 HC-

Arush

a

The notice that extinguished deemed right of occupancy is valid.

Only representative to the suit are the one covered by the court relief

Ako Gembul &

100 Others vs.

Gidagamowd

and

Waret Farms

Ltds & NAFCO

1989 HC

Arush

a

That the Government has priority in Food Security and the

acquisition of the Barabaig Land is proper, as national interest

overrides all other interests

Mwalimu

Omari and

another v Omari

A Bilali

1990 HC In case of double allocation deemed right of occupancy become

squatter

Ng’otyaki

Oloruja &

Others v. R

1991 HC-

Arush

a

Convictions quashed by the High Court as they were based on (1)

Repealed Law, and, (2) Section 9A of the Ordinance under which

the accused were charged contained no punishment provisions

Lekengere Faru

Parutu

Kamunyu & 16

Ors v. AG &

others

1994 HC-

Mosh

i

The High Court per Munuo, J. finds that the Evictions were illegal,

Orders that alternative land be sought and Claimants be

Compensated but the decision was overturned in the Court of

Appeal per Nyalali, CJ, (1999) who ‘finds out’ that the Maasai are

not Natives of Mkomazi but ‘recent’ immigrants who only resided

there under a licence. Orders paltry damages for only those who

gave evidence in Court and also orders for alternative land to be

sought.

Ibrahim

Korosso & 134

Others v.

Thomas Ole

Sabaya &

Others.

2002 CHR

GG

Forced eviction is unlawful

Endorois v.

Kenya

2010 ACH

R

Classified indigenous people to be nomadic pastoral, hunters and

gatherers and not necessary to the first people of the area

African

Network for

Animal Welfare

(ANAW) v.

AG

2010 EACJ Whatever orders we must make therefore should be preventative and

for obvious reasons; the environment, once damaged is rarely ever

repaired

Kubenea v. AG 2014 HC Those decisions are entrusted to our Nation’s elected leaders, who

can be thrown out of office if the people disagree with them.

It’s not the duty of court to protect people from the consequence of

their political choice

1

Human Right cases Continue

Parties Year Court Court Response

Methuselah Paul Nyagwaswa

v Christopher Mbote Nyirabu

1985 CAT A holder of a right of occupancy under native

law and custom does not automatically become a

squatter when an area is declared a planning area

Chumchua Marwa v. Officer

i/c of Musoma Prison & AG

1988 HC-

Mwanza

Detention Act 1962 was Declared

Unconstitutional. the Bill of Rights could be

enforced even when the rules and procedure were

yet to be enacted by the government

Kakubukubu, Suzan & Others

v. Kasubi Walwa Joseph

&another

1991 CAT Payment of compensation to a holder of a

deemed right of occupancy or to his agent or to

his representatives extinguishes that right

AG v. Lohay Akonaay &

Joseph Lohay

1995 CAT A holder of a right of occupancy under native

law and custom does not automatically become a

squatter when an area is declared a planning area

Tellis v. Bombay

Municipal

1987 India

LRC 351

The right to life is not limited only to protection

of arbitrary taking of someone life but also

protection of the means of sustaining livelihoods

4.2. The Breach Anglo-Maasai Agreement of 1959

The indigenous struggle to retain land rights has become a crisis, generating extensive

struggle for more than half a century. That struggle has roots in the controversial land

agreements between the British colonial government and the Indigenous People

Particularly Maasai139, which is the watersheds of the indigenous land loss. The

conflict underlying this problem manifests itself in a contest of ownership interests

between pastoralists and conservation policies. The said agreement is questionable

from the inception on the basis that indigenous people were neither informed nor

consented as the community. Despite the irregularities from the inception, the 1959

Anglo-Maasai agreement of 1959 has provided for respect and protection of

indigenous rights. These rights are envisaged in the statement given by the then

colonial government Governor to the Maasai soon after Serengeti eviction who

pledges to them that,

139Shivji and Kapinga. (1998) Maasai Rights op.cit p.74 Appendix I. The agreement was made on 21 April 1958 between 12 representatives of the Maasai and the representatives of the British colonial government

2

Another matter which closely concerns the Maasai is the new scheme for

the protection of the Ngorongoro Crater. I should like to make it clear to

you all that it is the intention of the government to develop the Crater in

the interests of the people who use it. At the same time the Government

intends to protect the game animals of the area, but should there be any

conflict between the interests of the game and the human inhabitants, those

of the latter must take precedence140.

This speech implies that the new scheme to be established in the Highland of

Ngorongoro must be carried with due respect to the indigenous right as the result of

the tragedy eviction from the western Serengeti. To this suggestion, the newly scheme

to be established will only work if the indigenous interest are not in danger. What

happen subsequently is contrary to the Governors statement, the NCAA policies are

no longer regarding the interest of the indigenous rather, several measures has been

undertaken to relocate the same people somewhere else contrary to the pledge141.

In responding as to whether the 1959 Serengeti agreement was made voluntarily by

the indigenous Maasai. At first many of the respondents were not born or very young

when the agreement was effected but assured the researcher their knowledge of what

had transpired in the agreement. For those who responded this question, 96% were of

the view that the said agreement or treaty as they called it, was in all dimensions

involuntary, induced and coerced. In responding this question Moses Ole Shangai142

stated,

The agreement is in four dimensions involuntary, at first it was the

agreement between the colonizers and colonized, this means the contract

was not in equal footings, the second dimension is that there was no pre

informed consent for the move, there were no alternative option for

140Homewood .K. M & Rodgers, W.A (1991), Maasailand Ecology: Pastoral development and Wildlife conservation in Ngorongoro, Tanzania. Cambridge University Press: Cambridge 141 Tanzania Human Right Report 2014 p.184 showing that more than 2000 indigenous people has been dumped to Oldoinyo Sambu 142 Moses Ole Shangai is the Maasai indigenous residing at Endulen village within Ngorongoro Conservation Area, he was responding to the researcher interview question on 26 August 2014. The interview take the form of unstructured interview which allowed kind of narrative stories on the history including the 1959 Serengeti Eviction.

3

indigenous people than to vacate the western Serengeti (Moru) or lose

them all. He went further explaining that, the selection of the signatories

who were said to be the representative of the said treaty were biased

chosen, traditionally we have leaders and not rulers, every decision of the

society is done through consensus, in this treaty everything was different,

the so called Ilangwanack (traditional leaders) are not vested with any

power to sign treaties but to lead the society through consensus143.

In this agreement, the Maasai renounced their claims and rights to Serengeti National

Park in exchange for a solemn pledge by the government that they would be “permitted

to continue to follow or modify their traditional way of life subject only to close control

of hunting” in the Ngorongoro Conservation Area144. The agreement was in regard to

regulation of hunting activities within the area but with no consent, information or

involvement of the indigenous people the successor government (Tanzania) enact the

law not only to regulate hunting as agreed but also to ban subsistence agriculture which

resulted into indigenous miseries because of hunger and even death. The government

and NCAA go further to the extent that indigenous residential development are subject

to the consent of NCAA as if it has better title than their counterpart indigenous people.

It is the practice in literature today to regard the occasion a negotiated settlement

between the Maasai and the British, and a relocation that was consented to by the

Maasai. However, it is important to note the context of the negotiations and the fact

that the Maasai did not have many options at their disposal when pitted against their

will by the strong colonial administrators supported by a sustained international

conservation campaign that wanted the Serengeti free of people.

The fact that it took almost eight years from 1951-1958145 for any resettlement to be

recorded stands as testimony to the resistance that the indigenous people put up against

being removed from their ancestral land. In the end, they did not have much choice,

143 Ibid 144 Tanganyika Government Paper No. 5 of 1958: Proposals for Reconstituting the Serengeti National

Park. Quoted in Shivji and Kapinga 1998, p. 9. 145 Potkanski, T (1997), ‘Pastoral Economy, Property Rights and Traditional Mutual Assistance Mechanisms among the Ngorongoro and Salei Maasai of Tanzania’, Pastoral Land Tenure Series Monograph 2, IIED, London.

4

they had to sign the agreement because otherwise they risked losing everything, and

they risked being kicked out of the Serengeti in exchange for nothing or for some token

financial compensation146. An interesting issue is that among of the twelve signatories

were all Maasai but the impact of the agreement also bind also indigenous Barbaig,

the Akie and the Hadzabe who reside in the area. The dissatisfaction of the indigenous

was not during the British rule alone, it has been the long struggle undertaken by NCA

indigenous for their rights to be respected, and they undertake different peaceful

measures including consulting National leaders yet their rights are not attended.

4.3Indigenous Communal Land Tenure

When respondents were asked to respond to the question as whether their system of

land tenure, including nomadic life is the root cause of their vulnerability, 57% of those

who responded this question disagreed with the view that nomadic pastoralism is their

mode of life and livelihood and they practiced the same for centuries without sort of

injustice which befell them after the introduction of conservation policies in their

ancestral land.

37% of the respondent affirmed that their mode of life contributed to the alienation of

their bucolic land by superior interest group and that it is difficult to defend customary

land whenever alienation is done since there is no individual land occupation because

of frequent nomadic life but communal land ownership of the territories. When

responding as to the connection between indigenous people and the land Supuk

Saidimu Olemaoi had this to say;

For us, land is life and our livelihood is attached to land, where can we

go? We have been the victim of the conservation and investment policies;

we are not prepared to go further. We have been evicted from western

Serengeti, from then we have been fighting to regain our lost territories

with no success. Now it is not only that we had given up on regaining the

western Serengeti, but we fear also to lose few territories which remained

with our occupation147.

146 Olenasha op.cit p. 147Supuk Saidimu Olemaoi is the Maasai educated young man bred and resident of the Ngorongoro District and one of the vocal activists for pastoral indigenous right in Ngorongoro district.

5

Thus, it has been studied that Land and related rights are of more fundamental for

indigenous people. The habit of pastoral most nomadic, moving from one place to

another make it difficult to claim occupation in the land and therefore difficult to

defend it when attempt to deprive is done. The ignorance and negative attitude of the

government and donors who consistently misinterpret or disregard the basis for

indigenous land tenure system as the mode of life and livelihood that need to be

recognized and respected is the root cause of indigenous trepidation in protected areas.

4.4 Indigenous Participation and Consultation

The right of everyone to participate in decisions that affect the exercise of their human

rights is strongly grounded in international human rights law and standards148.

Indigenous within NCA has been fighting for inclusion in the Board that decides for

their life and livelihoods, in the contrary, that representation is always reduced as time

goes. The first unit that governed the area after attaining conservation standards was

composed of indigenous only save for the Conservator.

From 1968 the unit was reconstructed and ingenuous were not given any

representation in the Board of Directors until the late 1980’s149. Since then a new

tradition was adopted that every Member of Parliament form Ngorongoro

Constituency was automatic the member of the board. This never live forever, from

2011 that tradition was abandoned living indigenous with questionable representation.

Because of the above, indigenous in the area has never sit back for it and frequently

threatened to close the entrance gate until their claim be heard. Both the Universal

Declaration of Human Rights and the ICCPR guarantee the right to life150 and take part

in the conduct of public affairs which has been curtailed away in NCA. From the plan

of relocation done in 1959, the inscription of the NCA as a world heritage property

and a biosphere reserve to the management and the formulation of the policies

affecting indigenous life and livelihoods in NCA they had been neither participated

148 Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters Aarhus Convention, Aarhus 1998 149 Homewood & Rodgers Maasailand Ecology op.cit p.47 150Article 3 which states everyone has the right to life, liberty and security of person Universal Declaration of Human Right adopted in1948.

6

nor consulted. Essential procedural protections to avoid forced evictions, including an

opportunity for genuine consultation with those affected were never implemented.

One of the common and frequent sign of dissatisfactions of NCA indigenous on how

the land they occupy is managed is on the point of participation or consultation in

matters affecting their life and livelihoods. Several attempt has been made to enclose

the main gate as strategy or mechanism of calling the government to address their

problem with no success.

4.5 Designation of Ngorongoro as a World Heritage Site

The history and present situation of Ngorongoro Conservation area cannot be

understood without reference to the universal status that has been accorded to it by

being nominated as a UNESCO World Heritage site and a UNESCO biosphere

reserve. Ngorongoro Conservation Area became a natural World Heritage site in 1979

when it was inscribed on the World Heritage List under criteria (vii), (viii), (ix) and

(x). In 2010, the area was additionally inscribed under cultural criterion (iv) in

recognition of its paleontological and archaeological significance, thus becoming a

‘mixed’ site.

Although the Government of Tanzania had applied for simultaneous recognition of

the NCA’s significance as a Maasai cultural landscape, this was wholly rejected by the

World Heritage Committee following a negative and highly biased assessment of its

advisory body for cultural sites151. The omission of indigenous as one of the

outstanding values of the property has in fact necessitated pressure over indigenous

people with increase limited means of sustaining livelihoods.

Indigenous people were never consulted when the land to which they inhibit was

accorded these international standard at first instance in 1979 and even in the recent

151ICOMOS 2010. In addition to criticizing the low quality of the information on the Maasai cultural landscape provided by the Tanzanian government in the nomination dossier, ICOMOS found fault with the fact that “pastoralism within the Conservation area has now been significantly changed into agro-pastoralism through the impact of population growth and other factors”, that the “largely settled communities now rely for food on agricultural produce as well as on resources from their animals”, and that the Maasai “have recently begun keeping camels, although this is not traditional”. Hence, the conclusion was that the ‘Maasai pastoral landscape’ did not satisfy the conditions of integrity and authenticity and that the Maasai in Ngorongoro were “neither a unique nor an exceptional testimony to pastoralist traditions”.

7

2010152. The justification for inscription contained in the Statement of Outstanding

Universal Value adopted by the World Heritage Committee in 2010 is reproduced

hereunder

152 Olenasha. W (2014) A World Heritage Site in the Ngorongoro Conservation Area: Whose World? Whose Heritage? Unpublished p.25

8

Table II showing International Status Accorded to NCA

Criterion

No

Criterion Description

Criterion

(iv):

Ngorongoro Conservation Area has yielded an exceptionally long sequence of crucial evidence

related to human evolution and human-environment dynamics, collectively extending from four

million years ago to the beginning of this era, including physical evidence of the most important

benchmarks in human evolutionary development. Although the interpretation of many of the

assemblages of Olduvai Gorge is still debatable, their extent and density is remarkable. Several of

the type fossils in the hominin lineage come from this site. Furthermore, future research in the

property is likely to reveal much more evidence concerning the rise of anatomically modern

humans, modern behavior and human ecology

Criterion

(vii):

The stunning landscape of Ngorongoro Crater combined with its spectacular concentration of

wildlife is one of the greatest natural wonders of the planet. Spectacular wildebeest numbers (well

over 1 million animals) pass through the property as part of the annual migration of wildebeest

across the Serengeti ecosystem and calve in the short grass plains which straddle the Ngorongoro

Conservation Area/Serengeti National Park boundary. This constitutes a truly superb natural

phenomenon.

Criterion

(viii):

Ngorongoro crater is the largest unbroken caldera in the world. The crater, together with the Olmoti

and Empakaai craters are part of the eastern Rift Valley, whose volcanism dates back to the late

Mesozoic / early Tertiary periods and is famous for its geology. The property also includes Laetoli

and Olduvai Gorge, which contain an important paleontological record related to human evolution

Criterion

(ix):

The variations in climate, landforms and altitude have resulted in several overlapping ecosystems

and distinct habitats, with short grass plains, highland catchment forests, savanna woodlands,

montane long grass plains and high open moorlands. The property is part of the Serengeti

ecosystem, one of the last intact ecosystems in the world which harbors large and spectacular

animal migrations

Criterion

(x):

Ngorongoro Conservation Area is home to a population of some 25,000 large animals, mostly

ungulates; alongside the highest density of mammalian predators in Africa including the densest

known population of lion. The property harbours a range of endangered species, such as the Black

Rhino, Wild hunting dog and Golden Cat and 500 species of birds. It also supports one of the largest

animal migrations on earth, including over 1 million wildebeest, 72,000 zebras and c.350,000

Thompson and Grant gazelles153

4.5.1 Impacts of the World Heritage Designation

When asked as to whether the inscription of NCA as a world heritage property has

affected their life and livelihoods, 54% had no problem with the inscription of their

territories as the UNESCO property; to them the issue is the restrictions that befell

them after inscription. They thought that the main aim of inscription is to protect the

ecology and the wild animal which to them is important and paramount because as

pastoral they need also to live in uncorrupted ecosystem. But what comes after

inscription has been part of their miseries for decades.

153Statement of Outstanding Universal Value, in World Heritage Committee Decision 34COM 8B.13 (2010)

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Among of the interviewed respondent 37% stated that the designation of NCA as a

world heritage property under UNESCO was involuntary and that the indigenous of

the place were never consulted. They go further that UNESCO and ICUN have been

behind the endless relocation idea. The notable impact of word heritages standards that

has been accorded to NCA include but not limited to;

4.5.1.1Limitation of Grazing Resources

One of the most and worst impact to be felt by pastoral society in case their land is

accorded conservation status is the fact that their grazing right in most cases is

disregarded. In most cases the conservation policies are shaped in the way that make

total restriction to access the ancestral grazing land. This is what happened to

indigenous in the NCA so far by residents as a result of their lands being inscribed on

the World Heritage List from which their grazing resources are now diminishing. In

the name of conservation, access to grazing resources has gradually been decreased

over time. Critical resources have been taken and still more may be taken yet.

Responding to the question regarding confiscation of grazing resources Simel Tate Ole

Sakara an elder of almost above 80 years have this to say;

These prairies were gone, the highland also has gone, we found ourselves

within the center of the Serengeti national park and the NCA, and

sometimes we break the law (NCA conservation policies) because of

necessity. Any attempt to go whatever direction is subject to conservation

restrictions. We are no longer happy as fellows’ citizen for loosing almost

all our territories154.

Loss of autonomy brought in by unwarranted conservation standards and

restriction artificially created to limit peaceful utilization of grazing resource has

long been problem to indigenous people. If there is livestock density in the high

land and pressure of grazing resource is relatively heavy in places such as

Endulen, Esere, Osinoni and Kakesio155 then there could be no way to go since

the western Serengeti prairies have been accorded the status of National Park and

154Simel Tate Ole Sakara an old Man from Indian village within Ngorongoro Conservation Area during his interrogation with the report writer on 27 August 2014. He further asserted that the Serengeti boundaries are expanding northward and that the current boundaries are not the same that has been agreed in 1959 155 Endulen, Esere, Osinoni and Kakesio are the ward in the Western NCA bordering Serengeti National Park

10

also designated also as a world heritage property. This deprivation of valuable

traditional grazing resources for conservation has been felt particularly and

experienced as having detrimental effect on human life and their herds.

4.5.1.2 Threats of Eviction

Since the inscription of NCA as a world heritage property under UNESCO several

secret and open attempt has been initiated by the NCAA, the government and by the

UNESCO itself unfortunately the place for relocation was never studied. The future of

indigenous people within the NCAA is still uncertain, the NCAA has changed to be

an economic asset and not the not for securing livelihoods. The treat to eviction within

the now NCAA is befalling the same people who were formally evicted from the

western Serengeti. Any eviction or relocation is likely to leave them homeless,

landless, and living in extreme poverty and destitution. Forced evictions commonly

result in severe trauma and set back even further the lives of those that are often already

marginalized or vulnerable in the society.

We are not willing to live out of the NCA because the area is connected

with our life and livelihood, it is connected to our history, we have lost the

traditional places for ceremonies in the western prairies and now we are

threaten to vacate the high land, where can we go? We are in a prosperous

land, we are not the new comer and we depend this land for pasture, water

sources, school and our settlement156.

International Union conservation of Nature has been proposing of the relocation

of indigenous living within the Ngorongoro conservation Area. Some of these

recommendations are found in their several mission reports including these

undertaken in 2008 and 2012157.

The very idea of NCAA, the Tanzania government and UNESCO to endorse

relocation as an option to indigenous people elsewhere outside the NCA ignore

the very wishes and strong determination of indigenous to remain in the area and

reject the very policy of multiple land use underlying the foundation and creation

of the Ngorongoro Conservation Area in1959 as evidenced by the Conservator

156 Moseka Sangale response to the questionnaires on 14 September 2014 through personal inquiry during the field research. 157Report on the joint WHC/ICOMOS/IUCN mission to Ngorongoro conservation area, republic of Tanzania 10th -13th April 2012

11

speech quoted in chapter one. Even if the conservationist idea for relocation could

be effected on the basis of the delicate ecosystem no purpose could be saved.

NCAA has been leasing some places for gig hotels in the sensitive crater rim and

the NCA official residence for all carders increased congestion within the area but

no such claims from NCA or the government. At least UNESCO has been arguing

for relocation not only of indigenous but also the NCAA officials also to reside

outside the area.

Yet still wild animal specifically wildebeest are multiplying within the NCA and

they can course irreversible environmental damage as the indigenous cattle could

do. The only fair conclusion one can reach is that the idea of relocation is mostly

biased and ill motivated by NCAA and international institutions against

marginalized indigenous people.

Protest against the experience of displacement and marginalization by protected

areas, has become one of the defining features of the struggle in Ngorongoro

Conservation since the inscription in the world heritage. This marked a strong and

diverse protest against the disruptions of conservation to society and livelihoods

within protected areas in Tanzania. Conservation displacement, like other forms

of displacement, compromises two processes the forced removal of people from

their homes and economic displacement, the exclusion of people from particular

areas in their pursuit of a livelihood158.

Both form of displacement has been witnessed in Ngorongoro, from Serengeti

eviction to inscription of Ngorongoro as a world heritage property physical and

economic displacement has been common. People dwelling on the edge of a park

but unable to gather firewood or wild foods, to hunt, or unable to graze on the

other side of the park, would be unable to live as they were before.

Exclusion of economic activity which does not lead to moving house still

displaces that activity elsewhere. The act or omissions of the NCAA and the

government when doubled with International recommendations and directives

158Horowitz, L. S. (1998). Integrating Indigenous Resource Management with Wildlife Conservation: A Case Study of Batang Ai National Park, Sarawak, Malaysia. Human Ecology 26:371-403

12

(UNESCO and ICUN), a fair and reasonable conclusion will be drawn that

indigenous predicament history is much driven and influenced by external motive

to resettle indigenous out of the Conservation Area on their own accord (if they

realize the condition within the Conservation Area intolerable).

4.5.1.3 Cultivation Ban and Food Insecurity

The problem experienced as the most critical was food insecurity within the entire

Conservation Area. Indigenous see the decline of family herds and prohibition of

subsistence farming as the main cause of food insecurity and has indeed, in turn seen

as the basis of decline of health standards. Indigenous are of the opinion that the

solution to the situation to the acute hunger and growing poverty is to lift the ban of

subsistence farming within the conservation area.

The second half of 2012 and much of 2013 witnessed intense struggles by the

communities in the NCA to achieve food security and avoid famine, and also to

demand their broader human rights, which they see as having been denied as a direct

result of their living inside a World Heritage site. In 2012, a coalition of NGOs that

support pastoralists made the hunger situation in the NCA public. In a press release,

they highlighted the fact that there was an undeniably serious hunger situation in

Ngorongoro, so severe that children and adults had died of hunger and malnutrition,

and so widespread that a huge majority of the estimated 70,000 residents were facing

acute hunger and starvation. The NGO statement pointed out that:

Food insecurity and human rights violations are unfortunately also linked

to the international significance that has been attached to Ngorongoro

Conservation Area. The present hunger situation can, in the immediate be

attributed to a harsh and hurriedly made decision by the Government in

2009 to re-impose the ban on cultivation without coming with an

alternative means of livelihood and food security for the local community

in the Conservation Area. International conservation actors such as

UNESCO and IUCN cannot deny culpability in the present hunger

situation since they are known to have pressurized the Government to re-

impose the ban on cultivation owing to a perceived deterioration of the

integrity of the Ngorongoro Conservation Area as World Heritage Site159.

159 PINGO’s Forum et al. press release 21 October 2012

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The inscription of the status of the world heritage on the right to secure livelihood has

been in vein responding as to the impact of agriculture ban in the conservation area

Joshua Sanduta stated

What kind of creatures are we to expect everything from heaven and not

from the land produce like other people? There is no indication that our

life and livelihood will be progressing. We are human being and we are

the citizen of this country, like any other we need to develop, we need

prosperity, we cannot live in the sky like bird but on the land, the

government, NCAA and policy lawmaker must understand this160.

The recent cultivation ban within the NCA has led to intolerable miseries to indigenous

people within the NCA, the government think everyone within the NCA is a

pastoralist, that is the great oversight, is equal to regard that everyone in the city is the

businessman which is in fact not true, in the city there are also beggars who poses

nothing, the same applied to indigenous pastoral, there are ndorobo (Akie) who mostly

poses nothing and formally depended on wild hunting and honey collection which has

now been made unlawful within the conservation, since then their number is growing

downward.

4.5.1.4Failure of the Contemplated Multiple Land Use

One of the most documented pledge made to the Indigenous of Ngorongoro

specifically was that they could not been further dispossessed of the ancestral land,

Ngorongoro conservation area was meant to be a multiple land use. The intention of

creation was for indigenous people benefit but associated with tourism and

preservation of wild animals but with assurance that whenever conflict arises then

these of the indigenous prevails as part of the agreement to vacate the western

Serengeti. Majority of the respondent were of the opinion that the contemplated

multiple land use is likely to fail. In the line of indigenous right as assured as one of

the prime goals of NCA it was noted

Almost two years ago (now three years)161 we admitted tenth of people in

hospital only to realize they were not in fact sick but suffering from hunger

and Malnutrition, the hospital do offer free food for these who were

160 Joshua Sanduta is an Indigenous old man from Endulen 161 The respondent is referring the year 2013 hunger crisis in the NCA, the variance of the years has been the result of varying years of data collection and data analysis 2014 and 2015 respectively

14

admitted, for almost four month we find patients who need no other

medical attendance but food. Almost more than fourteen children who

were admitted to hospital did lose their life as the result162.

Regarding the multiple land use context, there are pigeon-hole belief that indigenous

people of the area were pure pastoralist and that the emergence of subsistence farming

was the result of exclusively non-reliance of the indigenous of the area of pastoralist,

hunting and gathering for food. This led to belief that the contemplated multiple land

use concept was between wildlife and pastoralist and not cultivation is indeed

misleading, the library research shows that not only before inscription of Ngorongoro

as the conservation area, small scale cultivation existed even before colonialism itself

small scale farming existed163.

The implementation of the contemplated multiple land use has been uncertain, the

NCA governance lack indigenous legitimacy and the only means to restore the lost

parity is the inclusion of the indigenous in the decision making process and full respect

of the multiple land use context unlike the ongoing situation in the NCA where

indigenous undertaking are allowed under NCAA discretions.

4.6 Efforts made by NCAA and the Government

Responding the question as to “whether NCAA and the government did all the needful

to protect the indigenous precisely the right to secure livelihoods within the

conservation area” the respondent were fairly divided. The respondent who answered

this question in affirmative were of the view that indigenous interest has been the

obligation of the NCAA and the government and effort has been made to distribute

162Personal correspondence in Endulen Hospital owned by the Catholic Church. Interestingly, despite the huge income accrued from NCA there is no even a single government hospital, health center and in several wards no dispensary and that all people within NCA goes either Endulen hospital or to nearby District. Absence of health facilities drew assumption that the policy makers and the government forgotten their obligation either by oversight or intentionally and that the multiple land use dream is now drooping 163 Tanzania Wildlife Conservation Monitoring Quoted in Shivji and Kapinga (1998) Maasai Rights op.cit p.40

15

food for poor families especially in incidences of acute hunger, they further stressed

that NCAA has also assisted to sponsor some indigenous students164.

Despite the hard and historical challenge facing indigenous people in the NCAA it is

undisputed fact that there are measures that has been made by the NCAA for the

betterment of the NCCA resident though in several occasions these efforts come to be

spoiled by the same regime. Addressing as to the effort made by the NCAA to the

wellbeing of indigenous people Justice Muumba had this to say

Since conservation is a spiritual endeavor, the same spirit should be built

to involve communities during setting up management plans of these PA’s

so that some specific benefits to be drawn from protected areas at times of

need are properly defined. Also, the benefits accrued from tourism should

reach communities in terms of community based project support so that

the spirit of conservation is kept alive within communities residing within

or along PA’s. Protected areas (PA’s) as it is with the NCA are more or

less like islands endowed with jewelry in the form of different resources.

With increasing pressure overland due to crop farming and livestock

keeping, the communities will always find a way in PA’s to carter for their

subsistence needs; as a result conflicts will always emerge165.

The pledge by the government166that it has abandoned its plan to disposes

indigenous people the chunk of land in Loliondo for an Emirates based hunting

company was a step forward made by the government to protect diminishing

pastoral land. When asked as to the to the president pledge to abandon the plan,

one anonymous respondent have this to say;

Tweeting in the social network is not enough, anyone who passes through

a certain root must lay a stone for recognition and remembrance, the stone

we need is the law that recognize that we are the lawful occupier of the

place and which acknowledge our role in protection of wildlife and

environment in general and not pledge through social network.

These pledge by the government proved to nothing other than efforts to reduce the

vocal of the indigenous from claiming their land. Three month after the promise

164Muumba, J (2013) Community involvement in conservation activities and benefit sharing, Ngorongoro Conservation Area (NCA), Tanzania (n.p). 165 Justice Muumba is the Director of Community Development in the NCAA 166 The pledge were made by the President of United Republic of Tanzania on November 2014 through Twitter responding to the online petition initiated by Avaaz against grabbing of Indigenous land in Loliondo. The tweet reads “there has never been, nor will there ever be any plan by the government of Tanzania to evict the Maasai people from their ancestral land”.

16

to abandon the plan to grab indigenous ancestral land the rights of indigenous

people were already hanging up, almost hundreds of indigenous resident were

burn by enforcement machineries resulting to displacement of cattle and human

also leaving almost thousands of people homeless167.

4.7 Threat Facing the Conservation

There no doubt that human civilization has had negative impact on biodiversity and

ecosystem. Hunting, human settlement with the sharp demographic revolution, the

destruction of habitat through farming, construction of big hotels and overgrazing have

all taken part in the natural environment, the impact brought by modernization and

civilization was the basis of the new policy of protected areas.

The population pressure in NCA had sharply increased almost eight times from the

time it was accorded the status of the Conservation Area, indigenous activities as

human being, the increase of tourism activities (more than 300 vehicles inters crater

per day) hence the traffic jam, the increase of small town and unplanned hotels and

tourism camps in the crater rim, the increase of wild animals specifically (wildebeest)

and the impact of global climatic change all together bring a lot of controversial

question. The impact of mankind on biodiversity has clearly been detrimental to many

animal and plants but the story is more complex and subtle than has been appreciated.

4.8Indigenous Land Rights versus State Interests in Wildlife Protection

Indigenous societies has been the victim of the new policy of conservation and face

greater threats to their way of life now than before, with the creation of game parks,

private ranches, and commercial wheat estates, indigenous herders are fenced off and

evicted from lands that were traditionally and legally in their occupation. One of the

emerging conflicts in the bucolic land is the conflict between pastoralist and wild

animals.

Among of the conflict that has emerged for decade is reallocation of pastoral

pastureland that has been accorded the status of National Park or any sort of protected

area. Interview, questionnaires and focus group discussion were framed in a way that

167 European Parliament Resolution notably the issue of Loliondo land Grabbing in Tanzania passed on 13 March 2015

17

allow descriptions as to how indigenous people regards the main problem of the

community development and how they define their relationship with the Ngorongoro

Conservation Area Authority (NCAA) which mostly influence all sphere of their lives

and livelihoods.

4.8.1 Views from Indigenous

Indigenous people feel too many rules and restrictions imposed upon them by the

Ngorongoro Conservation Act168, a legislation governing the whole of the NCA. They

are objected from cultivating any portion of land within the entire NCA and yet in

some places they are no longer allowed to graze cattle on the land they used to do.

They are excluded from certain water sources and cattle salt licks to the extent they

used to do. This entire situation make indigenous believe they are inhibited,

constrained and unfree. One of the respondents put it “we feel like we are confined to

the floor of the deep crater, surrounded by steep walls and unable to go where we want

or take our cattle where there is good grass or water”.

Their very presence within the conservation area is intentionally threatened in all

sphere of life and they know it. They are of the view that their situation is directly

associated with lack of access of a decision making body within the NCA. They feel

powerless, overruled and express very strong wish for determination to stay in the area.

They feel rooted in the area and feel attached to land which they have inhibited for

generation and which they consider their own as one of them was noted in the public

meeting held at Kimba/Oloirobi objecting appointment of the NCAA board of

directors, “this is our land, it is where we belong, no matter what happens, even if

nothing changes for the better, whether we are allowed to cultivate or not and even if

we have to starve and suffer, this is where we want to stay, we must be considered in

the management of our resources and we need not only representation in the board

but we need capable representative”

In responding as to whether indigenous people are lawful occupying the registered

villages within the NCA under Local Government District authority Act. Majority of

the responded who answered the supra question where of the view that the villages

168 CAP 413 R:E 2002

18

within the Conservation area are dully registered by the law, other drew the

justification of 1974 Crater as responding to the then village program.

We have been the victim of the law enforcement action who frequently

burn our premises, women and children has long been the victim of these

unlawful act, we are now homeless in expense of conservation policies, if

we are not beneficiary of this then who else can benefit? The frequent

attack by the police has led to indigenous predicament and also livestock

get lost as the result169.

From the research findings, it has been noted that the NCAA does not have

tenurial right per se over NCA territories. It is now well established principle

that deemed right of occupancy is protected under Article 24 of the Constitution

and that granted right of occupancy cannot be relocated over the same land held

under the grander right of occupancy unless the existing deemed right of

occupancy is lawfully acquired under the Land Acquisition Act170. This means

that, should the NCAA be granted or held the land under granted right of

occupancy without following the procedures under land acquisition would

amount to double allocation and the certificate of occupancy granted or which

will be granted over NCAA would be invalid and without effect in law as held

in the case of Mulbadaw the holding in which the court of Appeal never averred.

4.8.2 Views from Conservation Authorities

Conservation authorities have an entirely different view of what befell indigenous

people within the NCA. To them bucolic land use is incompatible with conservation

policies, tourism development and international standards that NCA has been accorded

of. The conservation policies presupposes that indigenous population and herds of

domestic stocks are likely approaching and locally surpassing, the carrying capacity

of the land in an irreversible process of environmental degradation. Management and

administrative in the NCA characterize the conservation area as a hardening stance.

This tendency reflects the view of the conservation and government authorities that

indigenous and modernization of the traditional livestock economy is incompatible

with the ecosystem and environmental conservation policies.

169 An indigenous elder from Irkeepusi 170 Act No 47 of 1967

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What is not clear is the nexus between the village within the park and the District. As

to whose control the indigenous within the NCA are falling under between the NCAA

and the District Authority Dr Manongi had this to say

Governance is about power, relationships, responsibility and

accountability. It is about who has influence, who decides, and how

decision-makers are held accountable. In context of NCA, governance can

be defined as a set of processes, procedures, resources, institutions and

actors that determine how decisions are made and implemented for

optimal conservation, livelihoods and tourism. Current governance mode

of NCA is multilevel and complex, with a variety of actors, different levels

and extent of power sharing, various formal and informal rules and vested

interests171.

To this view it is noted that if the government is power and who has power then

indigenous people are falling under influence of Ngorongoro Conservation Area

Authority, to them NCAA is their government and that they are less connected to the

central government. Also indigenous in Ngorongoro District have a long-fought

history of escalating land ownership disputes in Loliondo, since 1992 when the

foreign-owned Ortello Business Corporation (OBC) was granted hunting rights within

the Loliondo Game Control Area which is inhabited and legally occupied by seven

local villages in Loliondo. Perhaps this is the most internationally well-publicized land

tenure conflict of recent years Tanzania172. While there is often some ambiguity about

the borders and extent of Village Lands, in Loliondo all the villages involved in the

conflict with OBC obtained title deeds with the assistance of several church-based or

pastoralist development NGOs in the early 1990s.

The conservation authority see the indigenous and their herds within the conservation

as approaching and locally suppressing the carrying capacity of the conservation land

and they are of the option of voluntary relocation of indigenous people outside the

delicate NCA ecosystem. What is lacking to them is the scientific research to back up

their claims and justify the relocation missions, prior to this Research report there is

no a single in-depth study has been carried out to support these claims and to effect

that resettlement will be a proper solution facing the ecosystem. They further assumes

171 Dr Manongi, (n.d). Dr Manongi is the current Conservator of the Ngorongoro Conservation Area 172European Parliament resolution on Tanzania, notably the issue of land grabbing (2015/2604(RSP)) passed on 12 March 2015

20

that indigenous demands to modern housings standards and improved social services

(health centers and schools) as a direct and inevitable consequence of modern

civilization that will turn the natural environment into essentially man made and

artificial environment. As an outcome of historical circumstance, indigenous find

themselves subject to a series of draconian rules and regulations which do not apply

elsewhere in the country.

These rules are based on Ngorongoro Conservation Act which is regarded within the

conservation area as a definite. It is the NCAA that control land and define it is uses.

It is therefore argued that indigenous within the NCA do not have the same freedom,

right to and opportunities of self-reliant development that the rest of Tanzanian has.

Any attempt to claim these grabbed rights by indigenous people within the NCA is

subject to threat to resettlement outside the conservation area.

4.8.3 Critical Comments

The conservation authorities’ views seem to be ill informed if not pessimistic, NCAA

has failed it is responsibility to safeguards and promotes the interest of indigenous

inhabitant, which was stipulated as another equally fundamental objective of the

creation of the Ngorongoro Conservation Area. What is clear in the outset is that

NCAA seem little informed that it has contributed much to the indigenous

predicaments within the area and the current misunderstanding between conservation

policies and indigenous claims.

The view held by the conservation is that indigenous present an eminent threat to

natural environment is not yet backed by fact. These very claims are highly objected

by the researcher personal observation before, during and after field work when visited

the researched area. These claim indeed ignored the very fact that Ngorongoro-

Serengeti is largely a man made as molded by human remains and foot print of the

earliest man in history of mankind situated in Olduvai and Alaitole respectively. It is

argued that indigenous and the herds have minimal impact to the said ecosystem as

they have been part of the same ecosystem for thousands years173.

173 Homewood & Rodgers op.cit p. 67

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4.9Conclusive Remark

While the controversy of the most recent turnover of Ngorongoro has revolved around

political positions, international conservation strategies, and globalized media

campaigns, the heart of the issue exists as a daily reality for thousands of indigenous

people life and livelihoods. Their lives are changed by the government policies and

conservation strategies launched in this debate which often never take into

consideration the community’s centrality on the issue of management and revenue

allocation. Indigenous women have long been the victim since they may have to walk

an extra fifteen kilometers to get water, herders may lose precious livestock in the next

drought as the result of the congestion in a very small area which is the direct impact

of the international standards accorded to NCA and also due to wild animals and

livestock raising conflict and children may have to be told they cannot continue their

educations because of the growing poverty.

From the supra findings, the researcher therefore come to a reasonable conclusion that

the previous threats levied against civil society organisations operating in Ngorongoro

and restriction levied against indigenous people are tantamount to human rights

violation, breach of laws and the Constitution of the United Republic of Tanzania. It

should be noted that the first duty of the society or the legal order is to give each of its

members the possibility of fulfilling his destiny and if that society is incapable of

fulfilling such a possibility it must be transfigured.

22

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion

The relationship between indigenous people within the NCA and the NCAA is largely

one of conflict, misunderstanding and distrust. However, this state of affairs does not

mean or reflect an essential incompatibility between indigenous, mostly pastoral

resource use and environmental conservation policies. It is rather a result of historical

circumstance and particular system of conservation policy put in place and stressing

conservation at the expense of interest of indigenous people. The findings in this

research suggest that indigenous livelihoods and conservation policies are compatible

in principle and practice; it is only the matter of policy and implementation.

Two parallel processes with direct impact on indigenous peoples have emerged in

Tanzania during the past several decades. The first is the mounting presence of

international and local NGOs and human rights advocates who played a vital role in

increasing the awareness among indigenous peoples of their rights. The second is the

rapid arrival of international corporations and capital in the form of investment with

the blessings of national government and international donor agencies. Such agencies

often obtain the land for their investment such hunting bloc in Loliondo with the

support of the State. In most cases the government invokes its right of eminent domain

to take private or communal land with or without the consent of the occupier or users

of the land. Land that has belonged to indigenous for hundreds and sometimes

thousands of years is appropriated for forestry, conservation and hunting purposes.

It is now recognized that indigenous pastoral mode of production is not as such

necessarily nomadic but is more in the form of transhumance a rational system adapted

to the ecology and delicate ecosystem they operate. Even some occurrence of soil

erosion is not only the result of the indigenous overgrazing, but has been necessitated

by the congestion of pastoral people in the small area which is the direct result of

conservation policies to which their former territories are now either National Park,

game reserves or Conservation Area. There are claims that the reason for cultivation

ban within the conservation area is the result of fear from the conservationist, ecologist

23

and international agencies that the indigenous of the area may change from subsistence

farming to extensive farming in the delicate ecosystem. From the field and library

research several studies show that the indigenous of the area are not and never had

been interested with extensive farming.

Indigenous peoples must be empowered to have the right to control their lands,

territories and natural resources and to maintain their traditional way of life. This

includes the right to security in the enjoyment of their means of subsistence. These

rights display the inseparable link between sustainable development and

environmental justice. In international law, three key sets of rights are now well

established regarding the relationship between sustainable development and

environmental justice: first, the right to life, including the right to a healthy

environment, second, the traditional and customary property rights of indigenous and

other local communities, and third, participatory and procedural rights such as the right

to be informed and the right to know.

Procedural rights are critically important in the conversion of interests into rights, they

are not easily enforceable through legal proceedings, but they indicate the wider

ascription of value or status to the interests and claims of a particular entity. Because

of such ascriptions, lawmakers and institutions are encouraged to take account of those

interests and confer on them some priority that they might not otherwise enjoy.

Frequent claim made by indigenous People within the Ngorongoro Conservation Area

were and are likely to have been misunderstood by the government by equating them

with other protected areas and several regions within the Country. Contrary to any

other protected areas in Tanzania NCA is the only and sole Conservation Area and that

unlike National Parks, human settlement are lawfully allowed with strict limitation to

means of sustaining life and livelihoods. It is not like the claim of the majority of

Tanzanian who want to share the National cake, but people who claim to live and

sustain their life, not because of their laziness, but as the result of strict policies

imposed upon them by the newly established wildlife policies.

24

5.2 Recommendations

5.2.1 Recognition of Indigenous People

International instruments that Tanzania is the party including international Convention

for indigenous people should be ratified and incorporated in the municipal law. In the

line of the recognition of indigenous people there are indeed need to legalize

communal land ownership as a formal system of livelihood for some of the societies

who are still connected with the land as the source of life and livelihoods. This research

drew attention to the other dimension which is likely to contribute further to debate of

indigenous liberations; this is the context between individual and collective rights. All

the supra discussed rights, including the right to life, the right to property and right to

pre, free and informed consent partake strongly of collective rights by their very nature

of the structures and organization of indigenous people.

This show, albeit in a tentative fission, the potency of the concept of collective rights

of marginalized indigenous people to structure their life and livelihoods. Also the

conservation policy marker must recognize indigenous communal system of life

including pastoralism and hunting and gathering as environmental benign. More than

anyone else, indigenous communities understand and respect the fact that all parts of

the natural environment need the other parts to function and therefore a balance must

be maintained. The ecosystem is their source of living and sustainable use is key to

sustainable communities.

This research report argues that indigenous resource management systems and their

system of livelihoods including nomadism are not only well poised to reduce

deforestation rates but also to provide a rich array of experiences, expertise, and

practices that can significantly contribute to protecting biodiversity, food security, and

sustainable livelihoods in indigenous communities, as well as finding answers to

climate change challenges. The right granted to indigenous people for specific forms

of protection of their land rights under international law; stresses, in line with the UN

Declaration on the Rights of Indigenous Peoples must be observed, that any shift in

land use should take place only with the free, prior and informed consent of the local

communities concerned, the government must provide effective mechanisms for

25

prevention of, and redress for, any action which has the aim or effect of dispossessing

indigenous peoples of their lands, territories or resources.

5.2.2 Adoption of Holistic Approach

The situation that befell indigenous people within the NCA has been necessitated by

monopolization of power by the Board which has inefficient representation of

indigenous people who are more likely to be affected by the policy made. There is

need to take holistic approach to support and strengthen indigenous peoples including

the recognition of traditional tenure, respect for and revitalization of cultural and

spiritual values; sustainable livelihood practices, governance systems to raise

awareness of the values of indigenous peoples ensure that projects are designed them.

Currently the conservation policy concentrate on wildlife protection and economic

earning and that little concern is directed to interest of marginalized indigenous people

of the area. In the cosmological view of many indigenous communities, everything

within the ecosystem is intrinsically linked and interdependent everything is

connected. To insure that the holistic approach is effected the NCAA Board must be

reformed to introduce professionalism and also to meet the interest of indigenous

people. The most common obstacle and challenge is the lack secured rights to access

and management of lands, territories, and resources represent a fundamental

requirement for indigenous peoples and local communities to maintain and practice

customary use and traditional knowledge in their daily interaction with biodiversity.

5.2.3Adoption of Co-ownership Principle over NCA

To assure effective existence of all interested group in the area and the contemplated

multiple land use context, there should be incorporation of Co-ownership of NCA (in

this context a property), the co-owners must be in equal footings in the course of

bargaining, that is to say the Government for economic purpose, UNESCO as a

universal value and indigenous as home. To this end NCAA should be managing the

property as an impartial trustee to protect the interest of the three mentioned co-

owners. The implication of this is that, the state retain it is right in the property as one

of the most earning site for economic development of the state and its people,

International agencies such as UNESCO and ICUN retain their interest in universal

26

Conservation of the world heritage and more important of all is indigenous retain their

home, ancestral land and livelihoods.

In this new proposed system NCAA as the trustee could only act of what has been

consented by all co-owners(Tanzania government, Indigenous People and UNESCO)

unlike today version to which NCAA is only responsible to two superior parties (The

State and International agencies) leaving inferior indigenous livelihood to be decided

by the strong parties. Collaboration is only effective when all partners can consent on

equal footing, and that is only possible when power is genuinely shared. When power

is equalized, problems are approached differently and eliminated.

In case the implementation of the NCAA policy is detrimental to indigenous means of

securing livelihoods such as ban of subsistence farming, then equitable alternative

should be provided. The proposed framework suggest that the only means to bring the

contemplated purposed that has been a dream for more than fifty years in efficacy is

through the adaptation of the co-ownership principle from which every party interest

will be protected.

5.2.4 Equal Right of Occupancy for all Indigenous

In order to attain it is overall aim (multiple land use), the strategy must first of all seek

to secure home and subsistence rights for indigenous people within the conservation

area. The Local Government (District Authorities) Act174 must be applied within the

NCA to empower the village within the Conservation Area in the management of

resource tenure in the way compatible to conservation policy. Indigenous must know

that the land they live in and live off cannot be taken from them or used for other

purpose without their pre, free and informed consent. Now the overriding authority

over the land and resource tenure within the NCA rest solely on NCAA and that the

village found in the area lack effective control over the land they occupy and resource

found in the village land, the village found within the NCA are indeed drooping,

unconnected and existing exist in paper only as potential.

Community development proposed here requires new division of power between

NCAA, the Village government and the district and regional Authorities. Only then

174 Act No 7 of 1982

27

could the village within NCA attain the status of resource controlling entities in

accordance with the village land Act. Unlike the existing laws, the recognition of other

section of indigenous people as lawful occupier should be issue of paramount and a

statutory requirement. Currently its only Maasai indigenous are the one recognized to

be the lawful occupiers and that they are the only section of the indigenous protected

by the NCAA laws living minority Akie, and Barbaig to remain within the NCA in the

discretion of the management authorities.

5.2.5Amendment of the NCAA Act

Violation of indigenous rights within NCA is more connected to the law governing

their life and livelihoods in the researched area. It is now high time to re-enact the said

legislation inter alia to meet the Constitutionality demands and to empower among

others the indigenous people of the area including providing statutory provision for

equal sharing of power and resources. The draft and all the stages of the new law must

be discussed by the people in the area through seminars, workshop and through

training with intention of creating legal awareness. The said law must contain explicit

provisions that in case of exercise of power by authority that affect livelihoods of

individuals and the community at large an equally alternative means of livelihood

should be provided. That alternative means should be provided with consultation to

indigenous communities before the exercise of power is affected.

The new law must provide the equal division of power in the management board not

only to indigenous but to the capable indigenous people. The mere representation is

not enough but indigenous should be consulted and must consent for the whole process

of getting their representative. The current problem concerning top down structure in

the management of NCA should be extinguished and re-introducing professionalism

in the management of the property, this requirement goes together with political title

of the members of the board must expressly be eliminated. There are two options of

changing the said legislation either through court petition to test Constitutionality of

its provisions or through parliamentary motion, what is clear is that the re-enactment

of the said Act might be offing, distant and difficult one.

Among the supra two alternatives Court petition seem to be the credible option to test

the Constitutionality of Ngorongoro Conservation Area Act provision including

28

S.14B175, court petition is still the best option compared to parliamentary motion which

not only rarely work but by the bare fact that the recent parliamentary debate are

shaped with selfish political interest. The option of court litigation is also subject to

uncertainty especially if the new Proposed Constitution will be promulgated before the

said petition, the proposed Constitution bared the Court from declaring the Statutes to

be void or Unconstitutional, Article 65(6)176 which read in Swahili version;

Iwapo Mahakama kuu itaona kuwa inafaa, hali au maslahi ya jamii

yanahitaji hivyo, badala ya kutamka kuwa sharia au hatua hiyo ni batili,

Mahakama kuu itakuwa na uwezo wa kuamua au kutoa fursa kwa

mamlaka nyingine yeyote inayohusika kurekebisha hitilafu iliyopo katika

sharia au hatua inayolalamikiwa ndani ya muda utakaopangwa na

Mahakama hiyo, sharia au hatua hiyo itaendelea kuwa ni halali hadi

marekebisho yatakapofanywa au muda uliowekwa na Mahakama kuu

utakapokwisha ilimradi muda mfupi zaidi ndio utakaozingatiwa.

In a bona fide translation the proposed Constitution per the quoted article means, if the

High Court deems to be appropriate and public interest requires, instead of declaring

that the law or action to be invalid, the High Court will have jurisdiction to determine

or provide opportunities for other authorities to fix the defect in law or action

impugned within time scheduled by the court, law or action will continue to be valid

until the defect be resolved or the lapse of time so scheduled by the High Court

whichever(options) is shorter emphasis added. This shows that the first option

changing the NCA Act through Court petition could not precisely be the good option

if the new Constitution be promulgated.

The other option is through parliamentary motion which is not only rarely successful

but also the parliament is growing irresponsible and possibility of supporting mass

interest is not as such credible option as witnessed during the Special parliament for

Constitutional change. Despite the difficulties, the said Act needs to be either re-

enacted for public interest.

5.2.6 Grabbing of Indigenous Land should be Resolved/Addressed

Tanzania is witnessing a dramatic increase in large-scale acquisitions of land by

foreign companies, investment funds in the name of conservations, as well as by

175[CAP 413] 176 Article 65(6) United Republic of Tanzania Constitution 2014 not yet promulgated

29

domestic investors; these are often characterized as land grabs under Tirana

Declaration of 2011. The government needs to prioritize detailed land reform to

adequately deal with chronic land grabbing; this reform should cover land use

legislations, redistribution measures and the promotion of land management. Making

use of climate change adaptation measures to increase land utility and productivity,

alongside the recognition of indigenous rights to land should be cornerstones of reform

and the previous mischief belief that indigenous and the bucolic land is ready for any

other purpose be eliminated. These historical injustice including grabbing of

indigenous land for conservation purpose and for multinational companies should be

analyzed and be addressed by appropriate authorities including launching of an

independent investigation into the land disputes in several part of the country including

the hot scandal in Loliondo.

30

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REPORTS

European Parliament resolution on Tanzania, notably the issue of land grabbing

(2015/2604(RSP))

Taarifayakamatiyakudumuyabungeyaardhi, maliasilinamazingirakuhusu

Tathminiya

matatizoyaliyotokananaoparesheniTokomezailiyowasilishwaBungeni

tarehe 21th December 2013

PAPER PRESENTATION

Edward Lekaita et al (October 17-19, 2012) Land Grabbing and Political

Transformation in Tanzania Paper presented to the Global Land Grabbing

II Conference Cornell University, Ithaca NY,

Olengurumwa,O (Monday, April 19, 2010) The Bill of Rights in Tanzania the best or

the worst Human Rights in Tanzania: Two decades of the Bill of Rights, the

good or the worse. A paper presented at the workshop prepared by Tanzania

Teachers Union.`

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