Mama Amon
JF-Expert Member
- Mar 30, 2018
- 2,021
- 2,478
1. Introduction
Dear Phillip Mpango,
The Vice President of the United Republic of Tanzania:
Dear Kassim Majaliwa,
The Prime Minister of the United Republic of Tanzania:
On 15 July 2023 the Minister of Works, Transport and Communications, Professor Makame Mnyaa Mbarawa, and his technical team of experts, under the leadership of Hamza Johari, held a press conference under the coordination of Tanzania Editors Forum (TEF), so as to respond to the disquieting concerns of Tanzanians about the controversial Tanzania-Dubai Ports Treaty (URT 2022).
The Chairperson of TEF, Deodatus Balile, used this occasion to work as the Public Relations Officer (PRO) of DPW as he repeatedly attacked personalities contrary to the TEF journalistic norms and general principles of intellectual engagement.
Despite the unevenness and complexity of this press conference, the claim which Professor Mbarawa and his team asserted, and which we empathically deny, is this: that, the Tanzania-Dubai Treaty is potentially end-closed and shall soon be actually end-closed through the subsequent conclusion of the Host-Government Agreements (HGAs), concessional agreements and lease agreements.
We vehemently denounce this brainwashing strategy which is pegged on information disorder, which we classify as either disinformation, misinformation or malinformation, any of which amounts to epistemic injustice against the innocent public.
According to Claire Wardle and Hossein Derakhshan (2020) disinformation is content that is intentionally false and designed to cause harm. It is motivated by three distinct factors: to make money (financial); to have political influence, either foreign or domestic (political); or to cause trouble for the sake of it (psychological or social).
Misinformation is an untruthful content which is shared between two or more persons but the person sharing does not realize that it is false or deceptive i.e. they don't have the intent of harming others.
And malinformation is true information that is shared with an intent to cause harm. Malinformation often includes private information that is spread to harm a person or reputation.
Thus through this political intelligence memorandum we argue, with evidence provided, that, by reason of the existence of onerous contractual clauses in the Tanzania-Dubai Treaty, the State House and the Parliament have paradoxically granted to Dubai investors “eternal use ownership rights” and “eternal fruits ownership rights,” for which reason, the Treaty covertly grants to Dubai investors “eternal substantive ownership rights” over 88 Ports in Tanzania.
From this fact we conclude that, the Tanzania-Dubai Treaty is an instrument for facilitating “land grabbing,” also known as “land rush,” around 88 ports in Tanzania for the benefit of Dubai “settler colonists,” who will then covertly acquire “territorial sovereignty” over Tanzania’s land segments around 88 ports, this being contrary to legal and constitutional prohibitions.
Through this memorandum we shall formally protest against this constitutional breach, and then argue for the following recommendations;
- That, the Tanzania-Dubai Treaty should be de-ratified and totally abandoned.
- That, the four stage-contracting-Model, namely, “the IGA, HGA, concessions, and leasing,” should be abandoned on grounds of protecting national security, for it is not healthy for an international state actor (URT) to enter into a business transition with an international non-state actor (DPW).
- That, DPW should enter contracts with TPA as a foreign direct investor without being given a shield of IGA, which binds a democratic republic to monarchial state, in a way that breeds irreconcilable disharmony in our thought processes.
- And that, we call upon you to provide “statecraft education” to President Samia Suluhu Hassan and Hussein Mwinyi on the dangers of “settler colonialism”. Probably, their being products of Arab settler colonialism makes it difficult for them to see why the Tanzania-Dubai Treaty is nauseating!
- Introduction.
- The emptiness of the prohibitive phrase “rights of ownership of the land in Tanzania” in the Treaty.
- Historical background of customary and statutory land tenure systems.
- A challenge of “global land grab” through foreign direct investments.
- The global prevalence of “global land grab” through foreign direct investments.
- Why does the global land rush matter to customary landholders?
- How are customary land rights affected in practice?
- Summary, conclusion and recommendations.
- References
Hamza Johari
2. The emptiness of the prohibitive phrase “rights of ownership of the land in Tanzania” in the Treaty
Under DPW Treaty, article 8 talks about “land rights,” in light of the “definition” provided under article one, which defines the phrase “land rights” as follows:
“‘Land rights’ shall mean all those rights (EXCLUDING RIGHTS OF OWNERSHIP OF THE LAND IN TANZANIA) over land related to examination, testing and evaluation, analysis, inspection, construction, USE, possession, CONTROL, assignment, and enjoyment (including LEASE, rights of way, easements, and land OCCUPATION rights) as are required to carry out the project activities.” (Tanzania-Dubai Treaty 2022, article 1)
Following Gonzalves (1963:392-93), our interpretation of this definition is informed by a fivefold classification of property ownership rights.
In property law, the bundle of rights that together constitutes full ownership of property can be sub-classified into five separate sub-sets:
(1) Use ownership rights (“usus”)—the right to temporarily use or possess, i.e., hold, occupy, utilize and prevent others to use the property which is substantively owned by another person;
(2) Fruits ownership rights (“fructus”)—the right to temporarily collect the fruits, i.e., to receive and enjoy the earnings, profits, rents, and revenues and prevent others to collect the fruits from the property which is substantively owned by another person;
(3) Substantive ownership rights (“abusus”)—the right to abuse or alienate, i.e., transfer, lease, and encumber the property;
(4) Use and fruits ownership rights (“usufruct”)-- the right to use and derive profit or benefit from property that belongs to another person, as long as the substance of the property is not damaged, where a “usufructuary” is a person who holds property, or the use of assets, by usufruct; and
(5) Full ownership, which combines all the first three possibilities of use rights fruits rights and substantive rights.
In our view, the Tanzania-Dubai Treaty directly talks about “full land ownership” when it refers to “rights of ownership of the land in Tanzania,” where we take this phrase to be read as the “rights of [full] ownership of the land in Tanzania,”; it directly talks about land “use ownership rights” by referring to land “use,” “control” and “occupation” rights; it directly talks about land “fruits ownership rights” by referring to land “lease” rights; and it indirectly talks about land “use and fruits ownership rights” when it severally talks about land “use” rights and land “lease” rights.
This having been said, we now wish to argue by elimination in order to bring to public notice the following paradoxical observations: (1) That, the Tanzania-Dubai Treaty overtly grants to Dubai land “use ownership rights”; (2) That, the Tanzania-Dubai Treaty overtly grants to Dubai land “fruits ownership rights”; (3) that, That, the Tanzania-Dubai Treaty overtly denies Dubai land “substantive ownership rights”; and (4) that, the Tanzania-Dubai Treaty covertly grants to Dubai land “substantive ownership rights” through articles 4(1), 20, and 23(4). This fourth point is described next.
We have seen that, in property law, a usufruct is a real right of limited duration on the property of another. The features of this right vary with the nature of the things subject to it as consumables or non-consumables.
In the case of non-consumables, such as a piece of land, the usufructuary has the right to the use of the thing and all fruits of the thing subject to the usufruct. The obligations of the usufructuary are to preserve, not necessarily the form, but the substance of the land, to use it as a prudent administrator, and to deliver it to the substantive owner at the termination of the usufruct.
Thus, usufructs are of two kinds; perfect and imperfect. Perfect usufruct refers to things which the usufructuary can enjoy without altering their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, as a house, a piece of land, animals, furniture and other movable effects.
And imperfect or quasi usufruct, refers to things which would be useless to the usufructuary if he did not consume and expend them, or change the substance of them, as money, grain, liquors.
Under the Tanzania-Dubai Treaty, when article one and article 8 are read together, they imply that Tanzania has given “perfect usufruct” to Dubai investors, which is temporary by definition, where the Treaty term is open-ended since, the commencement date and termination date are not overtly stated therein.
And this means that, the Dubai investor is, not a presumed usufructuary, but a presumed substantive owner of 88 ports in Tanzania, until when “all” the “Host Government Treaties (HGAs),” “concessional agreements” and “lease agreements,” to be drafted at a future date, will indicate otherwise.
However, the number of HGAs, concessions and land leases, is open-ended, meaning that, the number is not mentioned in the Tanzania-Dubai Treaty (the Inter-Governmental Treaty—IGA).
Article 23(1) under IGA indicates that “the HGAs and all of the Project Agreements” are subject to “additions or extensions.”
And article 23(2) states that, IGA will override HGA contractual time bars in the following unequivocal language:
“In the event that a HGA is terminated prior to expiration of its term, this Agreement shall remain in force for the time, and to the extent, required by any state party or by the project company to assert any rights arising therefrom, protect any interests endangered by or bring any proceeding resulting from termination of the HGA.” (Tanzania-Dubai Treaty 2022, article 23(2))
All this evidence points to one conclusion; Such an open-ended treaty overrides the time bars presumed under land title deeds. Therefore, the Dubai investor will stay in Tanzania until when he unilaterally decides to leave. By history and tradition, “Arabs” are “settler colonists.”
They migrate to a colony to stay, exploit, dominate, displace, reduce or replace the natives. In effect, the Tanzania-Dubai Ports Treaty is an instrument for facilitating “Arab settler colonialism” around 88 ports in Tanzania Mainland.
One may try to rebut this conclusion by arguing that, the Tanzania-Dubai Treaty can be terminated either via article 8(3)(c), or via article 20 when read together with article 23, or via article 14(2), as Hamza Johari did yesterday during the press conference at Hyatt Hotel in Dar es Salaam.
The said article 8(3)(c) states that, “the government of Tanzania shall ensure that land rights to the project activities are… “obtained for the period specified in the leasehold” in terms of the Land Act (1999).
The Land Act allows a leasehold for the period of either 33 or 66 or 99 years, which are revocable by the government at any time should the leaseholder misbehave, in which case the structures erected by an investor on the land shall be nationalized subject to “full, fair and prompt compensation,” as required by section 1(g) of the Land Act (1999).
Article 14(2) which stated the conditions under which “expropriation” of Dubai investments can take place, states that, such nationalization, shall be subject to “full, fair and prompt compensation,” as required by section 1(g) of the Land Act (1999).
The legal requirement of “full, fair and prompt compensation” makes it practically impossible for the government to afford making any decision of an investor’s land title cancellation or expropriation of an investor’s property. Let us explain.
According to Komu (2014), there are at least eight statutes that guarantee existing landholders of compensation when their lands are taken by government in Tanzania. They include: The Land Acquisition Act No. 47 of 1967, The Lands Act No. 4 of 1999, Village Land Act No 5 of 1999, The Investment Act No. 26 of 1997, The Urban Planning Act No. 8 of 2007, The Road Act No. 13 of 2007, The Export Processing Zones Act No. 11 of 2009, and The Valuation and Valuer Registration Act (2016).
Under Section 1 (g) of the Land Act No.5 of 1999 the cardinal principle governing land acquisition and compensation in Tanzania is stated as follows:
“…to pay full, fair and prompt compensation to any person whose right of occupancy or recognized longstanding occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act…”.
The amount of compensation payable is to be assessed by a qualified valuer and the basis for assessment of the value of land and unexhausted improvement on the land is market value.
According to Morri and Benedetto (2019:4-5), as defined by the Appraisal Institute in 2002, “market value” is defined as follows:
“the most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.”
And, on the other hand, commercial value is derived from the future, meaning that it is an expression of doing business by using an income generating property. So it involves expectations risk assessment and investment in the future.
In short, compensation is considered to be PROMPT if paid without delay; compensation is considered to be FAIR if it is based on market value of assets that has been nationalized or expropriated. And, compensation is considered to be FULL if it allows the aggrieved party to recover both past losses and future losses.
In the latter case, to say that an aggrieved party is entitled to full compensation is to talk about compensation for harm sustained as a result of the non-performance, where such harm includes both any loss which it suffered and any gain of which it was deprived.
Here, past loss means the expenses incurred in performing the contract and future loss means the net profit which the contract would have produced. For example, a builder undertakes to construct a house for the price of TZS 100,000. His total costs are projected to be TZS 80,000, the remaining TZS 20,000 being his expected profit.
The builder invests TS 55,000 by the time the other party breaches the contract. In these circumstances, the award on the basis of the full compensation doctrine will be TS 75,000 which represents TS 55,000 in expenses plus TZS 20000 expected profit.
According to Ripinsky and Williams (2008:112-28), the logic for the distinction between past losses and future losses is simple to understand based on the following logic:
In a typical breach of contract, the injured party, in reliance upon the contract, may have incurred expenses placing himself in a position to perform the contract with an expectation of receiving some revenue in return that would reimburse expenses incurred, plus provide some degree of profit.
When the other party fails to perform in a situation where the injured party already incurred expenses, in order to wipe out the consequences of the breach, the injured party must be compensated for the expenses already incurred and must be awarded the profits lost, as the two elements would be the equivalent of substituting for contract performance, that is, together, they are economically equivalent to obtaining the revenues not earned.
Thus, compensation for past losses only, would put a claimant in the position it was before concluding the contract, whereas, if supplemented by future loss (net gain lost), it would put the claimant in a position that it would have been in if the contract had been performed.
In other words, only awarding both past loss and future loss would achieve the objective of full compensation, where the latter is computed on the basis of the “contract term,” which in the present case, is not less than 50 years, according to the global standards.
Ripinsky and Williams (2008) clarify that, as an alternative to full compensation approach, some expropriation clauses in investment treaties require that compensation be equal to the “fair market value” (FMV) of the lost investment.
The FMV rule entails the need to value the assets affected by governmental interferences. The value of an investment equals the present worth of expected future benefits, and the price paid for a business should reflect the ash flows it is expected to generate.
In effect, the two approaches are founded on two different fundamental premises, two different understandings of loss.
On one hand, under the FMV approach, the claimant’s loss is understood as the market price the claimant would have received had it sold the asset immediately prior to the tie of interference.
And on the other hand, under the full compensation approach, the claimant’s loss is understood as the money invested by the claimant in the asset plus any net profit foregone as a result of interference.
This is to say that, pace the FMV approach, the Tanzania government cannot, and has never afforded, to pay “full, fair and prompt compensation” to any person, including an investor like DPW, as the lawyer, one Rugemeleza Nshalla, recently remarked provocatively.
And article 20 when read together with article 23, state that, if the Arbitration Tribunal receives a “declared dispute,” determines it, and concludes that, in light of "United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Arbitration Rules),” the “declared dispute” is fatally divisive, but “prior consent of the state parties” has been “unreasonably withheld” by either party to the contract, then, “the state parties shall not be entitled to … terminate this Agreement,” meaning that, this treaty is presumed to be eternal ab initio.
Article 35(3) under UNCITRAL Arbitration Rules (2021) states that,
“in all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade [rules] applicable to the transaction.”
The Tanzania-Dubai Treaty is an eternal treaty by presumption and that is what the Arbitration Tribunal is bound to respect, as a matter of principle.
In effect, article 20 and article 23 under the Treaty imply, the Dubai investors have a veto power in the termination of this treaty. Being the historical protagonists of “settler colonialism,” they will always seek to “assert” the presumed eternity of the treaty.
From the above discussion, we wish to conclude this part by stating that, the Tanzania-Dubai Treaty is an open-ended contract, covertly drafted by cunning Dubai investors as a tool for facilitating “Arab settler colonialism” around 88 ports in Tanzania.
Settler colonialism, regardless of whether it is perpetuated by Arabs, Europeans, Indians, Chinese or Japanese, offends “territorial state sovereignty” every time and everywhere in the world. So, the Tanzania-Dubai Treaty, of necessity, must be either amended or de-ratified in order to protect our state territorial sovereignty. There is no compromise in this matter.
3. Historical background of customary and statutory land tenure systems
When we talk about a threat of “settler colonialism” to Tanzania we are talking about a clear and present danger with evidence readily available.
In order to prove our case we shall briefly discuss the phenomenon of “land grabbing” through foreign direct investments.
But before that, let us refresh our minds with a historical background of customary and statutory land tenure systems.
In general, sub-Saharan Africa went through the following three phases: pre-colonial; colonial and postcolonial rule which was after the withdrawal of colonial powers. Before sub-Saharan Africa was colonized by Western countries, the continent was inhabited by groups who were socially organized into tribes without national boundaries.
Land was managed under customary law, i.e. an unwritten system of law administered by chiefs and their advisors.
According to (Knox, 2010), customary land tenure, is defined as “laws, rules and norms governing rights to land and natural resources that are upheld by an authority other than the state and subscribed to by a collective defined by characteristics other than national citizenship”.
It is characterized by its largely unwritten nature; it is based on local practices and norms, and is flexible, negotiable and location specific. Its principles stem from rights established through first clearance of land or conquest. Customary systems are usually managed by traditional rulers or a council of elders.
These systems are continually evolving as a result of a number of interrelated and diverse factors such as cultural interactions, socioeconomic change and political processes. They are made up of four components: the land resource, the right-holders, the rules and the governing authorities.
The governing authorities in a customary setting are those non-state bodies that administer customary land and resource tenure. Their authority may derive from ancestral religious education, norms or democratic processes. In some instances, customary and formal authorities might be conflated, for example statutorily appointed chiefs.
However, when parts of sub-Saharan Africa became colonized, national boundaries were defined and the colonial powers introduced statutory law, usually modelled on systems in their home countries and used to exploit the land and protect their own interests (Lavigne and Durand-Lasserve, 2008).
Other parts of the country could remain under customary law. The result was a dual system of land tenure. The situation changed when the sub-Saharan African countries became independent as the ban on local populations settling on land that had been deemed statutory land was lifted. This legal change set off a rapid pace of urbanization (Satterthwaite, 2007).
Most countries chose to maintain dual systems, even though that meant keeping on the books of some statutory laws that were not only imported but, in most cases, outdated too.
As a result, people still failed to access land under statutory tenure. They then found other ways of accessing land in the vicinity of towns, either by settling on vacant land or by purchasing land from customary land owners.
Yet, in many parts of sub-Saharan Africa, the majority of landholdings are based on customary forms of tenure. Landholders’ rights depend on agreements that are embedded in local communities and that derive from their social relations with families, clans, lineages and communities.
Tenure insecurity problems in customary land are complex and may stem from many sources. Common among them are loss of usufructs rights, forced eviction, divorce and disenfranchisement (Mahama and Dixon, 2006).
On the other hand, statutory land tenure systems involve the administration of national land under a duly formalized legal framework governed by the state. Under this framework, Land Tenure Formalization (LTF) is a policy which promotes the possession of formal land tenure certificates, such as Certificate of Customary Right of Occupancy (CCRO) or Certificate of Granted Right of Occupancy (CGRO), which improves perceived land tenure security.
The CCRO and CGRO allow landholders to transfer their usufructs rights to other parties through sales agreements or nationalization by governments.
4. A global challenge of “global land grab” through foreign direct investments
According to an extensive study conducted by Wily (2011), the “global land rush” or “the global land grab” refers to the sharp rise in large-scale north–south land acquisition since 2000 and especially since 2007.
The term “north” means developed, exceptionally wealthy, or industrial economies, now including the BRICs (Brazil, Russia, India, China) and Middle Eastern states, while ”south” means largely poor agrarian economies in Africa, Asia, and Latin America.
The rush was triggered by the global oil and food crises of 2007/08. Political commitments by especially the European Union, to replace a percentage of oil use with biofuels triggered a rush by companies looking for lands to grow jatropha, sugar cane and especially oil palm at industrial scale for this purpose.
Looming shortages of cereals and animal protein drove countries in the north to seek ways to increase supplies that their own production sectors cannot provide. This coincided with a determination by Middle Eastern states to secure water resources to reduce the immense costs of crop production at home and an unstable international food market.
It also coincided with the BRICs looking abroad to secure rights to areas rich in oil, minerals, timber and other assets needed by burgeoning economies. The 2009 financial crisis fueled the land rush further, making available expansive capital withdrawn from failing sectors, and adding to the speculative stakes of cheap land acquisition enormously. The speed and scale of the trend definitely suggested a "land rush" or "land grab."
Evidence on record confirm that two thirds of lands being acquired are in Africa. The strong north–south orientation, and the prominent involvement of governments and state companies as buyers has invoked the popular label of “the new colonialism”. The dominance of sub-Saharan Africa as a land provider also suggested to some "a new scramble for Africa”.
There is some truth in this. Africans have endured major land losses over the last century associated with foreign dominance. This arose through state policies, as well as population growth, changing settlement patterns, and social transformation.
Surges in land losses occurred after 1890 with the formal establishment of European colonies in Africa; after 1920 and 1945 with sharp rises in settler and plantation farming following the two world wars; and during the 1970s and 1980s with African-led large-scale land acquisition, as independent governments distributed large areas of native lands under their control to aligned elites.
A commonality between these surges and the land rush today, is that ordinary, rural communities have lost their lands in largely involuntary ways. Moreover, as was the case under colonialism, a frequent intention in the current land rush is not to openly trade the commodities produced on the land but to channel them to the investor country, bypassing markets—suggesting a lack of confidence in or a failure of international commodity markets.
Similarly, speculative land acquisition (“profiteering” as it was then called) was as common in the 1880-1900 period as it is today, an unknown proportion of colonial land acquirers doing so with the intention of not producing on the land at all but selling the land on at substantial profit.
On the other hand, the current land rush could not exist without the full encouragement of investment-hungry host governments, who, as shown below, lay down a smooth path for this to occur.
In short, already, huge strips of supposedly “available” land from Mozambique and Mali to Cambodia and China have been purchased or leased. These transactions are frequently negotiated between governments and potential investors behind closed doors, without consultation with or significant compensation for the residents and farmers whose land is at stake.
This massive commercial pressure on land is occurring primarily in low-income and middle-income countries, often in settings where land rights are weak, unclear, and poorly governed. This creates enormous risks for governments, investors, and poor people—especially women.
This global land rush was sparked, primarily, by a dramatic rise in global food prices and now driven by a variety of factors including increased demand for food and biofuels, carbon markets, land for people without land, and the like.
It is remaking the face of agriculture and land use in the developing world. The underlying economic fundamentals indicate that this rush for land will continue for several decades.
These deals can lead to a loss of access and rights to land, water, and other natural resources. They can also result in the displacement of individuals and communities. This in turn dramatically impacts the livelihoods and food security of area residents.
5. The global prevalence of “settler colonialism” through foreign direct investments
Factual field studies and in-country verification reveal the following general features of the global land rush which have been documented by Wily (2011):
a. Most large-scale acquisitions are not through outright purchase but leases. Given that most leases are renewable, and many already for terms of 50 to 99 years, the distinction is moot. Where community areas are affected, leases take community lands for up to five generations and likely more.
b. It is not known for how long large-scale land deals will continue. Data to be published soon may suggest a tapering off. However this could be due to governments keeping deals more, rather than less secret.
c. It is difficult to be absolute about where most leases are being signed and where most hectares are involved. This is because data for many countries is seriously incomplete, including in Africa. Information is least available in Congo Basin states.
With these reservations data published in the past as to largest land lessor states are likely to unevenly confirm. Indonesia, Brazil, Ethiopia and Sudan will almost certainly remain among prominent lessor states.
d. The commonest purpose for acquiring lands is to produce biofuels. Emerging data suggests this absorbs nearly twice the area being acquired to produce food crops or livestock. New concessions for oil, mining, and timber extraction, and for taking over forested areas or planting trees in order to secure carbon credits, are fewer but could absorb as many hectares.
e. By far and away the major seller or lessor of lands to investors are governments. Private sector sales are few. This is because most land in lessor states is owned or controlled by governments in absence of customary/indigenous land interests being recognized as amounting to property. That is, governments especially in Africa, legally have an immense land resource to draw from.
f. Claims by governments that they only lease out “vacant and idle lands” or “marginal lands” are not being borne out in practice. Many leased estates are fertile, accessible to roads and markets, and actively used by local communities. Moreover, all these lands are owned under customary norms.
g. Many land buyers or lessees are also governments or government-sponsored agencies and companies. This may further constrain the annulment of arrangements should the investor not perform or should the developments prove deleterious to local populations. This is especially because land deal contracts are nested in bilateral investment treaties.
h. Delivery in terms of buyers actually clearing the land and establishing crops is slow or not even begun. While there are often good reasons for this, there is also concern that much land is being captured for longer-term resource security or speculation. The active presence of hedge funds, banks and even pension funds acquiring land for medium term returns tend to confirm this likelihood.
i. The land rush is underwritten by international trade law. This includes bilateral investment treaties and free trade agreements signed between governments (by 2009 there were already some 2,600 signed since 2005).
As well as assuring the investor compensation should there be expropriation or denial of the right to export the products produced, these give subsequent contracts the backing of international trade law and arbitration services, which some studies find have historically favored investor interests.
j. Acquisitions are normally expressed in binding contracts, not just issue of land deeds. The former usually include “stabilization” clauses which preclude the application of, or require compensation for, new or changed regulatory measures in the host country. These limit the control or recourse which lessor governments have over land uses or even the failure to develop the land.
k. Large-scale leasing is also backed by international lending conditions, advice, protocols and institutions, such as the International Finance Corporation (IFC), the investment arm of the World Bank Group.
This and other World Bank departments along with other international bodies have actively promoted market-led land leasing by poor states, with some rebuke that this has so far been at the expense of due diligence on human rights and socio-economic impacts.
They have directly assisted host governments to draft the plethora of investment promotion laws enacted over the last decade, to streamline “Doing Business” procedures (such as getting permits), to change laws limiting sale or lease of lands to foreigners, removing provision in land laws which place ceilings of lands obtainable, or impose development conditions, and have assisted in the establishment of Investment Promotion Centres to help investors acquire lands and to smooth the steps to doing business in those states.
l. No such organized assistance has been given to rural communities to protect their occupancy and use in face of investor invasions. International human rights law is weak to begin with, unevenly adopted in domestic law, and often protective of only minority populations who declare themselves as indigenous peoples.
m. Land acquisitions are not being forced upon host countries. On the contrary these are welcomed by present-day governments, persuaded of this as a main route to economic growth and having let their own smallholder sectors fall into demise after decades of minimal investment.
Investors are enticed with extremely attractive conditions including virtually total import and export duty exemption and VAT and other exemption for the first decade of operations, the right to introduce foreign labour relatively freely, and to access low interest loans from state banks using their new entitlements as collateral.
Moreover purchase or rental costs of land are exceptionally cheap, often around $1 per hectare per annum in Africa. Indeed, the benefits to investors are so multiple that it must be asked what governments hope to gain in return.
Setting aside likely personal gains by those facilitating or signing the deals, expectations are for technology transfer, perhaps the ‘pickings and leavings’ of goods which are not dispatched for export, some amount of infrastructural development, and job creation. It is too early to say if these benefits will be forthcoming. Jobs are certainly not emerging to the level anticipated.
n. Communities in affected areas also hope for jobs, training, and infrastructure. Leaders have been known to sign off on deals or give their approval without community members knowing about the proposition.
More broadly, governments gain significant support from business communities in their countries, anxious to partner or facilitate multinational land investments. Local universities routinely provide environmental impact assessment reports advising on soil suitability, frequently directly employed by the land investor.
o. The land rush reflects a shift in the global balance of leading economies. Although companies from Europe, Japan and America are active land lessees, others are from Bahrain, Brazil, China, Libya, Malaysia, Qatar, South Africa, South Korea, Thailand, and United Arab Emirates, along with smaller actors.
p. A regional bias is appearing; Middle Eastern states favoring Africa, and Asian states favoring Asian locations. South Africa is emerging as a major investor in Sub-Saharan Africa, with negotiations by the South African Farmers Union (AgriSA) underway in 22 African states, and a land deal already sealed for 200,000 hectares in the Republic of the Congo, with an option to expand to ten million hectares. Two large-scale farming zones by South Africa farmers are already active in Nigeria.
China could emerge as a major competitor to South African interests in Africa, with already large portions of Congo Basin states and Sudan under its aegis through oil, mining and timber concessions, and with an unknown number of land deals for industrial scale rice and oil palm production reported in Cameroon and DRC.
q. Despite the publicity generated by the land rush, a great deal is not known about it. It is not known how much land has been brought purely for speculative purposes; how many deals are joint ventures with host governments or local companies, or shell companies; how many deals do make provision for local communities to become contract farmers, tenants, or workers; what employment, technical training, and other benefits are legally binding in contracts; or what arrangements have been made to secure water access for local farmers.
Lack of information is due to the secrecy often surrounding large-scale land leasing, although one or two countries (Ethiopia, Tanzania) have pledged to make deals public. Field studies have largely found that deals lack attention to such issues.
r. While the impact of large-scale leasing on rural communities has become a major concern of international agencies, this has been delivered in mainly rhetoric and advisory guidelines on investment and land matters.
There is scant evidence of this making investors or host governments more cautious in what lands they lease or on what conditions. On the contrary, a recent critique suggests improvements are the exception, not the rule.
Very little if any attention is being given to improving international human rights law, so that the imbalance in support for investors and investment through international trade law, and human rights is growing.
s. Attention focuses on the larger and foreign leases of sales, but smaller acquisitions in the 500-1000 ha range are proceeding apace or possibly at an even faster rate. These lands are being leased by both domestic and foreign investors.
In some countries most lessees are nationals, although not acquiring the largest areas (e.g. Ethiopia). The surge is also triggering a wave of local speculative acquisitions, wealthy nationals buying up land to sell at profit to larger enterprises.
Polarization between rich and poor in rural areas has been increasing for some time and is now accelerating as rural lands become more valuable. In such circumstances, the majority ordinary poor tend to lose out.
A recent study showed this to be the case in Benin, Burkina Faso, Mali, and Nigeria due to the land rush and acquisitions by a new class of domestic agro-investors. Chiefs in several countries are also reported to be selling off their communities’ lands for private benefit.
t. Lesson-learning seems limited. As pointed out by the World Bank, the degradation of soils under large-scale mechanised sorghum and sesame farming in Sudan during the 1967-2000 era was swift and immense, similarly the case with colonial British-managed groundnut schemes and more recent Canadian funded and managed wheat schemes in Tanzania.
Large-scale rice schemes of the past were also not significantly successful in the Niger Basin. Calculated impact on water availability and downstream access is proving especially weak.
Surveys by investors or contractors tend to focus on soil study to determine the best use of the land, without attending to the impact of large-scale mechanized agriculture on fragile lands, and the impacts which clearing of woodlands will cause.
u. The global rush for land does not exist alone. This is complemented by a rush by foreign firms to secure contracts in especially Africa for especially major infrastructure projects (Chinese companies now dominate road and rail building around the continent) and a rush for buying up local enterprise. South African ownership now extends widely in Africa in manufacturing, including food and non-food items, mining, coastal and safari tourism, communications, and banking.
In addition, foreign companies are looking to poor agrarian countries to expand markets for their own goods, including creation of Special Economic Zones, most advanced in India but also being created in African countries; these enable foreign countries to establish finishing hubs for their products, often with duty-free imports, and to use local labor to create export items. China is among those establishing such hubs in Africa, with eight sites indicated.
v. The land rush is triggering a new leap in potentially irreversible social transformation wherein the poor, already the majority in Africa and Asia, become even more poor and disadvantaged and minority elites become even more deeply entrenched as majority land and resource beneficiaries.
Concerns around this are especially focused in sub-Saharan Africa, which is providing so many resources and yet is so poorly equipped to transparently shape and regulate large-scale investment so that it benefits the majority
6. Why does the global land rush matter to customary landholders?
As Wily (2011) notes, the global land rush matters to customary rights-holders in Africa for the following reasons, among others:
a. It is their lands that are the targets of large-scale allocations to investors. Their lands are being targeted because in most African states (and also Asia) lands held and used under customary norms are still not considered owned by these users, but in effect, lent by the state, which makes itself the legal owner of these properties.
There are exceptions, and in those cases, willful reallocation of customary lands is proving less smooth and more open to local challenge. In prime host states like Sudan, Ethiopia and the Democratic Republic of Congo, the taking of lands by governments and handing these over to investors is perfectly legal.
b. Often the most valuable land assets of rural communities are reallocated to investors. This is because, in practice, rural huts and farms receive a little more protection than collectively held forests, rangelands, and marshlands belonging to communities. Governments do not wish to remove people from their homes and farms more than necessary.
This brake is not applied to their commons, which are not only treated as un-owned but also as idle and available lands for governments to reallocate, because they are not permanently cultivated or not cultivated at all, being dedicated to off-farm uses and livelihood.
This makes forests, rangelands, and marshlands a main target for allocation to investors, especially where they are accessible to roads and markets and/or fertile. Yet these lands make substantial contributions to livelihoods and, given their extent and potential, are highly valuable to poor communities.
The leasing out of these lands by the state limits the potential for communities to realize that value. Opportunities for communities to emerge as lessors of these lands in their own right, as a route to moving out of poverty is now being fairly firmly closed to them by the precedents being set by the land rush.
c. Despite the focus on common properties held by communities, direct evictions and loss of farmlands is occurring. This is because a good many of these presumed “unoccupied and idle” lands are used for shifting cultivation and are interspersed with settlement and impermanent farms. This adds to livelihood losses due to losing all or some parts of traditional commons.
To take one country as example, in Ethiopia investors (many of whom ally with local politicians and companies) are clearing forests, damming rivers and diverting irrigation from smallholders, causing wetlands crucial to fishing, seasonal fodder production and grazing to dry up, and enclosing thousands of hectares of grazing lands for mechanised biofuel, horticulture and floriculture projects for export.
Assisted (or rather, forced) relocation is at least being provided for communities living within one 10,000 ha area, allocated to a Saudi-Ethiopian company, with many more relocations anticipated as the company’s lease is expanded to half a million hectares. Local food security is already an issue in a number of leased zones, in a country which already has a history of droughts and famines.
d. There are minimal legal constraints to the wilful reallocation of customary lands. Two constraints that could come into play are the need to pay compensation when people are removed and the need for state allocations to be in the public interest.
Neither presents an impediment if customary lands are considered to be less than real properties. Compensation for un-owned but occupied lands is usually limited to covering the value of lost standing crops and houses.
Most domestic legislation also allows that compensation can be paid after the fact of eviction. Public purpose is usually broadly defined to include private enterprise on the grounds that this may deliver taxes and jobs in due course.
e. Transparent, democratic and just governance is also being impeded by practices under the land rush. Opportunities for meanings of “public purpose” to be limited to genuinely public purpose are diminished by the practices of the land rush. Public purpose as including private purpose is being consolidated as acceptable.
This will contribute to even greater involuntary lands losses in the future. Bad practices are being sustained in even those states where customary lands are recognized as private properties.
In order to avoid payment, governments have been known to persuade owners to surrender their lands for public benefit (as seen in Tanzania and Uganda), to encourage investors to deal directly with pliable (corruptible) chiefs or other community representatives (as seen in Mozambique and Ghana), and to make arrangements to pay compensation at a later date.
f. Additionally, large-scale allocation is not often undertaken in consultation with affected communities. Customary landholders are not protected by fair information and consultation procedures.
Nowhere is free, prior, and informed consent for the allocation of customary lands obligatory when the public interest is involved. Where there is consultation, local permission is rarely granted on the basis of full information.
Villages in Sierra Leone, Kenya, Ethiopia, Rwanda and Mali are among those who were not told that canal construction for industrial sugar cane production or rice would dry up their wetlands, critical for seasonal rice production, fishing, reed collection, hunting and grazing and deprive them of the waters they themselves need to farm.
A case is recorded of a community in South Sudan agreeing to hand over 179,000 ha for an annual fee of $15,000 and construction of a few boreholes to a Norwegian company aiming to make millions on carbon credit deals. Another community in the same region will lose its commons to the tune of 600,000 ha should a deal with a Texas-based company go ahead.
g. There is no assurance that evicted customary landholders or those deprived of parts of their lands will be able to find jobs or other livelihoods to compensate for their losses.
The losses endured by local communities can be very great, including the commercial value of the land, the recurrent-use values of the resource, and the future value of the land for commercial enterprise. There are additional major social costs, such as those caused by dislocation, which may be incalculable.
They may include the loss of community and socio-economic support and the breakdown of families, such as can occur when men have to move to look for work, leaving behind women and children with little or no land to farm and without other support. There are also uncalculated costs in the loss of family farming activity which may be difficult to restart.
h. The likelihood of legal support for customary rights becomes more remote with the land rush. Reformism is already incomplete and fragile in especially Africa and Asia.
Land reform is likely to be placed even more strongly on the back burner as governments enjoy the benefits of being able to freely lease vast lands out to persons, countries or companies of their choice, including nationals; and as a mesh of binding contracts make changes to policies impossible. Restitution will also become even more remote, even where pledges to this have been made such as in Sudan.
i. The global land rush is also weakening the application of existing international human rights law in matters of land rights, and the adoption and interpretation of which is already flawed in Africa because the African Union considers only certain Africans to be indigenous to the continent.
j. The land rush is also hastening class formation and concentration of land ownership, including providing a more permissive environment for land hoarding, absentee landlordism, and simply failure to develop all the thousands of hectares which are being made available to investors.
k. The global land rush undermines the future of smallholder agriculture, maintaining a focus on industrial agriculture, in circumstances where this is unproven and where the smallholder sector is already starved of investment.
l. The land rush threatens civil peace. The deprivation of land and denial of rights to land have been shown historically to be major triggers to conflict and outright civil war. The case of Sudan is topical: the civil war of 1984–2001 was caused in part by local resentment of land-takings by Khartoum for private commercial agriculture, including allocations to politicians, officials, and foreign banks and enterprises, especially from Egypt.
Instead of returning those lands as required by the 2005 Comprehensive Peace Agreement, Khartoum has since allocated yet more lands to other foreign and local parties.
This has generated sufficient fury among communities that militia have been formed and Khartoum is increasingly responding with violent attacks in the most affected areas; Southern Kordofan and Blue Nile States.56
7. How are customary land rights affected in practice?
Relatively few large-scale enterprises are fully established on the ground and many communities do not yet know how they will ultimately be affected, or even that some or all of their lands now belong to private investors, not the state . Communities often do not discover this until the tractors arrive (Wily 2011).
Others are signed without specifying exactly which areas in a district will be leased, this being subject to feasibility studies carried out by the investors. Nevertheless, impacts are already apparent in early cases. A snapshot of several cases follows.
a. A Swiss company leasing 40,000 hectares in Sierra Leone has broken its promise to local farmers that their collective marshlands, on which rice is grown, would not be affected by sugarcane production for ethanol. Irrigation channels have drained those swamps, halting local rice production.
Only 50 of the promised 2,000 jobs have been created, at lower-than-promised wages. Pastoralists and land tenants have been displaced to make way for the sugarcane plantation, and the large-scale use of chemical pesticides and fertilizers is threatening groundwater and harvests beyond the plantation.
b. In Southern Mozambique, villagers evicted from an area declared as a national park have seen the areas promised to them for resettlement granted to a private investor for sugarcane production (30,000 hectares).
This land already belongs to other communities, who can also expect to be evicted.60 Meanwhile, a minimum of 22 large-scale leases to international companies for the production of jatropha and sugarcane directly affect fertile land, forested land, and wildlife areas customarily owned by communities.
These allocations stretch the boundaries of domestic land law, which protects customary rights in theory but, in practice, involves procedures that do not promote full and informed consent by all members of the community.
c. In Democratic Republic of the Congo, three large leases covering three million hectares have been made to companies from China, Italy, and Canada for oil-palm and eucalypt plantations.
All affected land is customarily owned and much of it is forested; it is likely that the forest will be cleared and the communities evicted. In a fourth case, dispossessed villagers are now squatting in the Kundelungu National Park, from which they will in due course be evicted again.
d. On the instructions of the federal government of Ethiopia, regional state governments have identified millions of hectares of land to lease to investors for commercial production, in accordance with its Agricultural Development Led Industrialization Program.
Nearly one million hectares has been so identified in Benshanguel Gumuz Regional State, leaving scant room for any generational expansion for even settlements and farms, and concern among local populations that their off-farm woodland livelihoods will be lost and their ability to farm curtailed by the clearance of these lands for industrial agriculture, decimating water and soil conservation needed to enable farming in lower areas.
Only a handful of the 4,338 jobs that were promised under four of the leases have so far materialized, most of them filled by outsiders. The Bechera Agricultural Development Project in Oromiya Regional State leased 10,700 hectares to an
Indian company for multi-crop production, incorporating most of the rangelands and wetlands used for grazing and seasonal farming, forcing families to sell their stock. Around 300,000 hectares have been leased to the same investor in Gambella Regional State for rice and banana cultivation, with a similar loss of the grazing lands.
Commercial exploitation of forests is encouraged and plans are in place to direct investment towards forests that are “encroached, cleared or abandoned” and are considered idle and available by government. This does not reflect reality on the ground, such as in the case of the Arsi Forest, historically occupied and used by Oromo agro-pastoralists.
e. In Madagascar, a new (2008) law has simplified land access for foreign investors. Although the two largest allocations (1.3 million hectares to Daewoo and 370,000 hectares to VARUN) were famously suspended, multiple smaller allocations to foreign and domestic investors continue to be made. Forests (of which there are 12.7 million hectares in the country) are considered state property and able to be allocated.
The same applies to 37.3 million hectares of pasturelands in dry zones, some of which are seasonally cultivated and/or regarded as future farming expansion areas. State law classifies them as un-owned lands, even though they are, by custom, the common property of rural communities.
Newly established commune land bodies are actively involved in leasing these lands to investors, despite a lack of information on the impacts of such action, or on the basis of promises of employment and other benefits that may not be fulfilled.
f. In Ghana, 17 commercial biofuel developments—15 of them foreign-owned—have emerged since 2007 with access to a total of 1.075 million hectares. These developments are largely on unfarmed lands that are owned customarily with the root title vested in chiefs.
Chiefs receive the rent from any allocation, which they are not required by law to distribute. Compensation is being paid for encroached farmlands but at only US$1 per hectare. The loss of livelihoods heavily dependent on commons is not being compensated.
In one study, families had lost 60 percent of their livelihoods and were forced to leave the area to find employment or to indulge in petty trading to survive. Fallow periods have been sharply reduced, with a likely consequent loss of soil fertility. Interviewees still hoped that jobs would emerge once the development gets fully under way.
g. In Rwanda, communal marshlands have been declared to be the property of the state and then handed over to private sugarcane companies. A recent study examined the impact of the 50-year lease of 3,100 hectares to the Ugandan-owned Madhvani Group.
Most of the 1,000 families affected consider themselves to have been wrongfully dispossessed and uncompensated and are angry that they cannot use the land that the company is not using. They have seen their incomes plunge over the past 13 years and cannot compensate this with the limited, low-paying jobs offered by the company.
A smaller, better-off group of farmers have established themselves as out-growers on lands they were able to retain. The loss of the marshes has also placed pressure on hill lands, where steep slopes are now being cultivated and fallow periods have been shortened.
h. Among several large-scale leases in Mali is a 99-year lease of 100,000 hectares of prime rice lands to Libya for the production of rice for export. Despite being customary land overlaid with seasonal pastoral use, passage, and watering rights, the land was declared “free from any juridical constraints or individual or collective property that hinders the exploitation of the land” because it had been registered as the property of the Niger Basin Authority some decades previously.
Already in 2009 it was reported that families had been displaced, farmlands lost, villages flooded, forests felled, and transhumance halted. Moreover, the availability of water had declined because of diversion to the Libyan projects, and dust pollution was growing.
Since the Libyans are using mainly Chinese labor, local employment has been minimal. No compensation for the loss of access or land-use rights has been promised or paid to affected citizens. Local resistance is being mobilized.
8. Summary, conclusion and recommendations
In the above sections we have shown the emptiness of the prohibitive phrase “rights of ownership of the land in Tanzania” in the Treaty; we have discussed the historical background of customary and statutory land tenure systems; a challenge of “global land grab” through foreign direct investments was introduced; the global prevalence of “global land grab” through foreign direct investments was revealed; the reasons as to why the global land rush matter to customary landholders were listed; and we showed how customary land rights are affected in practice, with a focus on specific countries.
We call upon the two of you, our top leaders, to understand that, contrary to what the press conference presenters said, the scope of the Tanzania-Dubai Treaty is 88 ports in Tanzania mainland,, most of which are in rural areas. The livelihoods of many Tanzanians depend on these ports.
Any decision to handover these ports to investors under open-ended treaties, without showing how these native communities will continue surviving, is a decision which is not for the good of these communities.
We protest and provide the following recommendations, with a view of protecting our sovereignty and the livelihoods of the native communities around the seaports and lake ports;
- One, the Tanzania-Dubai Treaty should be de-ratified and totally abandoned.
- Two, the four stage-contracting-Model, namely, “the IGA, HGA, concessions, and leasing,” should be abandoned on grounds of protecting national security, for it is not health for an international state actor (URT) to enter into a business transition with an international non-state actor (DPW).
- Three, DPW should enter contracts with TPA as a foreign direct investor without being given a shield of IGA, which binds a democratic republic to monarchial state, in a way that breeds irreconcilable disharmony in our thought processes.
- Finally, we call upon you to provide “statecraft education” to President Samia Suluhu Hassan and Hussein Mwinyi on the dangers of “settler colonialism”. Probably, their being products of Arab settler colonialism makes it difficult for them to see why the Tanzania-Dubai Treaty is nauseating!
9. References
- Claire Wardle and Hossein Derakshan (2020), Information Disorder: Toward an interdisciplinary framework for research and policy making (Strasbourg: Council of Europe; p.109).
- Felician Komu (2014), "Conceptualizing Fair, Full and Prompt Compensation – the Tanzanian Context of Sustaining Livelihood in Expropriation Projects," Journal of Land Administration in Eastern Africa, 2.2:252-267.
- Lavigne Delville, P. and Durand-Lasserve, A. (2008). “Land Governance and Security of Tenure in Developing Countries”. White Paper. Paris: French Development Cooperation.
- Mahama, C. and Dixon, M. (2006). “Acquisition and Affordability of Land for Housing in Urban Ghana: A study in the formal land market dynamics”. RICS Research paper series 6(10).
- Milton A. Gonsalves (1963), Fagothey's Right and Reason: Ethics in Theory and Practice," 7th Edition, (St. Louis, America: C. V. Mosby).
- Satterthwaite, D. (2007). “The Transition to a Predominantly Urban World and its Underpinnings”. Human Settlements Discussion Paper Series. London: International Institute for Environment and Development (IIED).
- Sergey Ripinsky and Kevin Williams(2008), Damages in International Investment Law (London: British Institute of International and Comparative Law).
- Knox, A. (2010). “Customary Land and Natural Resource Tenure,” Presentation, Landesa Core Concepts Training, Seattle.
- Liz Alden Wily (2011), The Global Land Rush: What This Means for Customary Land Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa (Rights and Resources Institute, Brief No.5).
- UN (2021), United Nations Commission on International Trade Law Arbitration Rules, aka UNCITRAL Arbitration Rules (Vienna, Austria).
- URT(2022), Intergovernmental Agreement Between the United Republic of Tanzania and the Emirate of Dubai Concerning Economic and Social Partnership for the Development and Improving Performance of Sea and Lake Ports in Tanzania (Signed at Dodoma).
Mama Amon Desk,
"Sumbawanga Town"
Sumbawanga.
16 July 2023.
