LAND ACQUISITION IN ZANZIBAR (PART 1)

• INTRODUCTION

The Last 5-10 years has seen Investments sky rocket on the island of Zanzibar which meant more land transfers than any other previous period. Hotels have increased from a mere 300 to 600 hotels and counting. The same applies for residential and luxury homes. Due to this demand and the complexity of the Zanzibar Legal system and its history, land acquisition in Zanzibar is a topic that deserves its own weight and focus. In order to understand the current land acquisition laws in place we have to take a step back to pre-revolution time up to date.

• BRIEF BACKGROUND OF LAND OWNERSHIP LAWS OF ZANZIBAR PRE-REVOLUTION.

Before Revolution there were three land legislations in place namely;

•  Land Alienation Decree, 

• Public Land Decree, and 

• Land Distribution, 

Land acquisitions/transfers during this period were governed by the Land Alienation Cap 94 of the Laws of Zanzibar under section 4(1) and (3) which provides. 

(4) “No disposition of the land by the Arab or African made after or evidence by an instrument executed after the nineteenth of December 1953 whether such disposition is by way of permanent alienation ,lease or agreement for the lease for the term exceeding one year or limited to take effect from the future date or by way of mortgage shall be of any effect unless consent is given thereto by the board established for the area in which land is situated and such consent is endorsed upon the instrument affecting such transaction “

(3) “Notwithstanding the provision of section 54,60and 97 of the transfer of Property Decree, every such alienation, lease agreement and mortgage as in mentioned in subsection (1) shall be affected by a registered instrument.” 

1. POST-REVOLUTION.

All lands post revolution returned to the revolutionary Government of Zanzibar.

Due to incoming tourism investors post revolution, the government enacted new laws to cater for this need. This brought about the Land Tenure Act no.12 of 1992 and the land transfer Act No.8 of 1994 as amended by Act 10 0f 2007 which has similar provisions as well as the same functions as of of section 4(1) of the Land alienation Decree that was in operation pre-revolution. With regards to distribution of land to locals under right of occupancy, the principal legislation is The Land Adjudication Act, NO.8 of 1990. This was done in order to redistribute some of the lands to the public and those in need post revolution.

A current thorough analysis of the land ownership is made upon examining the following laws; 

• The land adjudication Act, no.8 of 1990

• The land survey Act No.9 of 1990

• The registered land Act No.10 of 1990

• The land tenure Act, No.12 of 1992

• The land tribunal Act No.7 of 1994

• The land transfer Act No.8 of 1994

• The land acquisition decree 1909

• The land tenure (amendment) Act No.15 of 2003

• Land transfer (amendment) Act No. 10 of 2007

• The land tribunal (amendment) Act, 2008

• Condominium Act No. 10 of 2010

• The Zanzibar investment promotion and protection act 2018

• Land rent regulations, legal notice no. 50 of 2007.

• The land tenure Act, No. 12 of 1992

• Land surveyor’s board regulations, ln. 58 of 2007

• Land transfer regulations of 2011.

Adjudication process;

The process of adjudication according to  section 6 The Land Adjudication Act, NO.8 of 1990 comes with the provision about Claims and Demarcation as follows;

1. Any person who claims any interest in land within the adjudication section to make a claim thereto either in person or by agent within the period, to the person, at the place and in the manner specified in the notice;
2. After that, require any person who claims to occupy land within the adjudication section to mark or indicate the boundaries of the land in such manner and before such date as shall be required by the demarcation officer.

Again section 10 of this Act comes with the provision on how adjudication process shall take place as follows; 

• Every person claiming an interest in land within an adjudication section shall make his claim in the manner and within the period fixed by the relevant notice under section 7 of this Act.
• A person whose presence is required by the adjudication officer, demarcation officer, or recording officer, as the case may be, shall attend in person or by agent at the time and place specified if any such person fails so to attend, the demarcation, recording or other proceedings may continue in his absence.
• In preparing an adjudication record if the recording officer is satisfied that a person- is in occupation of the land and provides documentary evidence consisting of a grant, conveyance, assignment or mortgage which is more than twelve-year-old.
• Where two or more persons have rights in any land which will entitle them to be registered as occupants in common under the Registered Land Act, the recording officer shall record such persons as occupants in common and the share of each.

The adjudication record shall consist of a form in receipt of each parcel of land, which form shall show: – 

• the number and approximate area of the parcel as shown on the demarcation map; 
• either the name and description of the person entitled to be registered as the occupant of the parcel with particulars of the manner in which he became the occupant of it and of any restriction affecting his power of dealing with it, or the fact that the parcel is public land; 
• such particulars of any right registerable under the Registered Land Act as shall enable it to be registered as a lease, charge, easement, profit or restrictive agreement, as the case may be, affecting the parcel together with the name and description of the person entitled to the benefit thereof and particulars of any restriction affecting his power of dealing with it; 
• if any person shown in the adjudication record is under a disability, whether by reason of age, unsoundness of mind or otherwise, the name of his guardian;
• a list of the documents, if any, produced to the recording officer and retained by him; 
• the date on which the form is completed.

• When completed, the form shall be signed by the recording officer and, in the case of land occupied by a private person, shall where possible include an acknowledgement signed by the occupant or his agent, and by any person recorded, having an interest in the land, that such occupant and every such person accepts the record.

• When the adjudication record in respect of any adjudication section has been completed, the adjudication officer shall sign and date a certificate to that effect and shall forthwith give notice of the completion thereof and of the place at which the same can be inspected together with the demarcation map.

• Any correction in the adjudication record required by a decision of the adjudication officer given under section 22 of this Act shall be made by the recording officer, any alteration in the demarcation map required by such decision shall be made by the survey officer.

• RIGHT OF OCCUPANCY.

In order to understand the right of occupancy in Zanzibar we will take a closer look at the Land Transfer Act of 1994, together with the land tenure Act, No.12 of 1992 and Land Transfer Regulations, LN. 70 of 2011.

Section 7 of the Land Tenure act, no.12 of 1992 states as follows; 

For Zanzibari a right of occupancy may arise in any of the following ways: – 

1. a grant from the Minister; 
2. recognition of a rightful interest following an adjudication carried out under the Land Adjudication Act and subsequent registration under the Registered Land Act; inheritance of a lawful registered interest; 
3. purchase of a lawful registered interest; or 
4. gift of a registered interest from a bona fide holder of a right of occupancy.

The right of occupancy shall exist under the following circumstances: – 

• that the holder of the interest be a Zanzibari over the age of eighteen, unless special provisions have been made; 
• that the holder of a right of occupancy shall have an exclusive right to occupy and use the land which comprises his right; 
• that the holder of the right of occupancy shall have the right to make disposition of the land or other interests therein to any other Zanzibari; 
• that the interest be held in perpetuity without specific term and be inheritable under the appropriate provisions of the Zanzibar law of Succession.

• LEASES

This applies to those who cannot own land under a right of occupancy and these may include foreign investors and companies looking to do business on the island.

• The Minister may lease any public land which does not comprise a right of occupancy to any person, Zanzibari or non-Zanzibari. 
• No lease of public land executed under the provisions of this Part shall exceed a maximum of forty-nine years.
• Notwithstanding of the provisions above, leases of public land may be renewed. Leases of public land shall not be sold, assigned, sub-leased or sub-divided but shall be inheritable.
• There shall be no restriction on the lease of a right of occupancy, or a part thereof, by the interest holder, provided the lease is for a maximum period of fifteen years. 
• Where any right of occupancy is jointly or communally held, approval must be given by all joint interest holders or in the instance where there are more than ten, in accordance with the provisions relating to statutory trust as set out in the Registered Land Act.

Duration and status of lease of a right of occupancy.

1. The lease of a right to occupancy shall be inheritable. 
2. There shall be no right to lease any land for purposes that will violate any zoning provision. 
3. The lease of a right of occupancy shall not be sold, assigned, or sub-divided but inheritable. 
4. There shall be no right to sub-let a right of occupancy without the prior approval of a lessor and any person or institution that holds a registered interest on the land in question, and where prior approval is given by a lessor or any interested person under no circumstances shall a sub-lease of the said right be in excess of five years. 
5. All government leases are for a maximum period of 99 years given in three 33-year intervals.