Sukuma customary law

1
THE CUSTOMARY LAND LAW OF THE SUKUMA AND NEW TRENDS
IN DEVELOPMENT IN NORTH WEST OF TANZANIA, EAST AFRICA
Saganda A. Matondo1
PART ONE:
INTRODUCTORY REMARKS
1.1 Introduction
The Sukuma are involved in agricultural and pastroral economic activities. They
occupy the present administrative regions of Shinyanga, Mwanza, Simiyu and
Geita in Tanzania which in this paper is referred to as Usukuma. They are a bantu
speaking people. Throughout Usukuma land law is regulated by Sukuma
customary land law under the Village Land Act, 19992
and other enabling statutes.
A greater part of Sukuma customary land law has not been written, part of it was
written during colonial times by Hans Cory3
(hereinafter referred to as Cory) and
and the aspects of land law covered by the Local Customary Law (Declaration)
(No. 4) Order, 19634
covers only inheritance matters.
As customary law is the source of land law of Tanzania, in Usukuma changes have
been taking place affecting the customary land laws and customs. As to why there
have been such changes, it is submitted that, due to change of Government from
colonial to independent government.5
Secondly, the abolition of Chieftaincy which
was the institution governing customary law with its development as part of local
government.6
Thirdly, the change of the policy of the country, from capitalist to
socialist then again to free market and liberalized economy.7
Fourthly, there has
1
LL.B (Hons), University of Dar es Salaam, 2001.
2
Act No. 5 of 1999.
3
Cory,H.,Sukuma Law and Custom, 1953.
4
G.N. 436 of 1963.
5
Section 9 of the Judicature and Application of Laws Ordinance, 1961 (JALO) which came into operation on the 9th
December, 1961. Also the Magistrates’ Courts Act, 1963; Act No. 55 of 1963.
6
Act No. 13 of 1963; The Chiefs (Abolition of Office, Consequential Provisions) Act, 1963 (Act No. 53 of 1963); also
the African Chiefs Act, 1969 (Act No. 53 of 1969)(Cap. 252)[R.E. 2002].
7
Mbonde, J.P., “Chachage Seithy L. Chachage: Makuadi wa Soko Huria (2002). Uchambuzi na Uhakiki”,11 SWAHILI
FORUM (2004), 211-226.

2
been population increase. Fifth, the growing of cotton as a cash crop. Lastly, the
influence of the Constitution and statutory law including the Village Land Act,
1999 and Village Land Regulations, 2001.8
Such have been the general factors
affecting Sukuma customary land law.
1.2 The Statement of the Problem
There is in existence among the Sukuma a problem of confusion between written
law and customary law. The Sukuma love their customs, they wish these could
have a place in national policy to contribute the governance of various matters. The
legal problem therefore is the absence of ascertainment of which customs are laws,
since so far only the Local Customary Law (Declaration) (No.4) Order, 1963 used
to be the guiding statute for Courts, which also fall short of land law matters save
for inheritance, which is also, doubtful. The Sukuma are observing customs but
without any guiding instrument. It has begun to be reported that they even do not
recognize the book by Hans Cory on Sukuma Law and Custom which used to be in
force during colonialism.
This study is based on Cory’s book ‘Sukuma Law and Custom’9
one may agree
that at the time of writing the book in 1950’s, which was after the Second World
War, the approach of colonial powers to rule Tanganyikans and Africans changed,
instead of being like tourists,10
they took interest in African affairs, started writing
and arguing using various panels of discussion purposely created,11
where they
argued for the appropriate strategy, with a sinister interest of ensuring they strictly
rule him from within.12
They therefore learnt personal and private lives,13
they
reduced into writting pieces of personal law14
with the view of giving a little to
take all. They came up with outputs and circulated amongst themselves, to provide
8
G.N. 86 of 4/5/2001.
9
Cory, op.cit.
10
See their attitude and discussion prior to 1939 e.g. Huggins,P.M.,”Sukuma Fables”, T.N.R.,1(1936)90-93; Hall, R.
de Z.,”The Dance Societies of the Wasukuma as seen in the Maswa District”,T.N.R., 1(1936) 94-96; Hartley, B.J.,
“Land Tenure in Usukuma”,T.N.R., 5(1938)17-24; Revington, T.M., “Concerning the Banangoma and Basumba
Batale Societies of the Bukwimba Wasukuma”,T.N.R.,5(1938)60-62.
11
T.N.R.; J.A.A.;African Studies;Africa;etc. after World War II.
12
Cory, op.cit., ”The Buyeye: A Secret Society of Snake Charmers in Sukumaland Tanganyika Territory” , Africa
Vol.XVI,3(1946) pp 160-178.
5. Cory, op.cit., “The Ingridients of Magic Medicine”, Africa,XIX, 1(1949) pp.13-32;”Mabasa”,T.N.R.,17(1944) pp.34-
43;”Religious Beliefs and Practices of Sukuma-Nyamwezi Tribal Group”, T.N.R.,54(1960) pp.14-26.
14
Howell,P.P., A Mannual of Nuer Law, 1954; Snell, G.S., Nandi Customary Law, 1954; Penwill, D.J., Kamba
Customary Law, 1951.

3
room and space to accommodate their forthcoming public laws which would
eventually swallow the African and his way of life.15
Such is the exact intent
behind Cory’s ‘Sukuma Law and Custom’. The book has never been reviewed
todate, nevertheless, the customs and laws have withstood the time and are almost
the same. And at the time of writing the same, the important point to note, is the
disappearance of the institutions of the Ntemi (Chief), Banangwa (village
headmen) and Basumba bataale (leaders of communal work groups).16
Such
institutions appear much in Cory’s work, their functions are still in existence
although not to the same extent.
Ntemi Kiganga of Bukumbi (Picture by Mark and Aimee Bessire)
15
Park, E.A.W., The Sources of Nigerian Law, 1963; As to the existence of customary law and received law said the
following at p.139: “In the present social and economic conditions of the country it is entirely necessary for the
two types of system to continue in joint operation. But the duality will not, and should not last forever. For reasons
of certainty and simplicity it is clearly preferable for a modern state to have as unified a legal system as possible,
and the future trend in the jurisdictions of Nigeria will inevitably be towards unification. It can also be predicted
that this process will be more at the expense of customary than of English law. For it should be recognized that
customary law, despite its remarkable adaptability, is basically not suited to the type of developed and
industrialized society which it is the earnest desire of Nigeria to become. It will of course be a pity for the
indigenous institution, which has its roots firmly fixed in Nigerian soil, to disappear, but any attempt to preserve
customary law merely for its own sake and after it has ceased to perform the valuable functions it still performs at
present would be useless and potentially harmful antiquarianism.”
16
Juma, W.,”The Sukuma Societies for Young Men and Women”,T.N.R.54(1960), pp.24-27.

4
It can also be observed that the attempted project of re-unification of customary
law17
led to the outsurfacing of individual tribal customary laws including Sukuma
customary law due to the impact of the Customary Law (Declaration) Order (No.4)
of 1963,18
which was adopted in Usukuma. .19
The Order therefore had the impact
of trying, certainly wrongly, to codify and unify customary laws. Instead of the
same being put in a ‘code’ that would be flexible in a rapidly changing society, the
Order is reported to have been a political than a legal work as an ingredient of
nation-building and mobilization for economic and social development20
which
Bukurura refer to as political penetration,21
the tendency, as Gluckman22
reported
was to create a system to develop a cognatic system of kinship, centering on the
nuclear family, while extended kinship groups were weakened. These weaknesses
were observed right from the beginning.23
1.3 The Scope of the Paper
The paper introduces the current position of the customary law in the statutory set
up and seeks to further make known the problem that surrounded and still
surrounds customary law from the point of view of the theoretical foundation and
practice to the extent of exposing antagonism between influence of western law
and lifestyle, foreign language and on the other hand customary law, African
languages and the attempted work to unify customary law.
Part two of this paper analyses the concept of ownership from the point of view of
its recognition under the Village Land Act, 1999 so far as it is village land. The
customary forums of discussion and the authorities for land allocation and
community influence in land control are shown. Part three discusses the concepts
of adverse possession and abandonment of land as orthodox principles spelt out by
Cory in paragraphs of his work and their relevancy to land control. The concepts as
17
Cory, H., Unification of Customary Law of the Bantu Tribes of Tanzania [The Version of the Customary Law
agreed upon by the Sukuma, Nyamwezi, Zinza, Kerewe, Gogo, Nyaturu, Nyiramba, Ha tribes and the people of the
Musoma and Tarime districts, and West Lake Province] Mwanza, 1961.
18 G.N. 436 of 1963.
19
G.N.436/1963; G.N.474/1963; G.N.605/1963, also James & Fimbo, op.cit., p.167.
20
Gluckman, M.(ed).,Ideas and Procedures in African Customary Law, 1969 at p.28.
21
Bukurura, S.H.,”Indigenous Communication Systems: Lessons and Experiences From Among the Sukuma and
Nyamwezi of West Central Tanzania”,Department of Administrative Studies, Institute of Development
Management (IDM), Mzumbe, Morogoro.
22
Bukurura, op.cit., at p. 29.
23
Cotran, E., “Some Recent Developments in the Tanganyika Judicial System”, [1962]J.A.L. pp.19-27.

5
they were tested in customary courts, the view of the colonial courts and later
discussed in terms of the prescriptive principles of limitation brought by pressures
of the time not to forget the usefulness of such principles in Usukuma.
Part four attempts to analyse the concept of sale of land in the context of the
Sukuma system of land tenure. Despite the individualistic and enterprising
characteristics of the Sukuma, the paper discusses why he was reluctant to sell
landed property. Part five is on acquisition of land, but specifically by inheritance.
This has been chosen in order to verify its substance from the various attitudes
brought by development in areas of gender and the instability of the institution of
marriage and family in the globalized world. What the African customary law as
offered by the Sukuma has to say about this in terms of land law is provided.
In Part six of the paper, we find a discussion on land shared and distributed for
public use and the one for private use. The trend in the Village Land Act, 1999 is
reconciled with the customary position. The gaps and milestone concepts that have
developed and need to be worked upon are shown vividly.
The discussion of the paper is concluded at Part seven. The suggestions and points
to ponder are brought to the reader. It suffices to say that there are challenges that
are suggested to be worked out.
1.4 The Objective of the Paper
The Sukuma customary land law has not been put out as a specific unit of laws in
any legislative instrument. They have not even been reduced in writing, yet the
Village Land Act, 1999 recognize customary law in general as a source of land
law. This paper analyses the trend of some of the concepts and their development
and suggests the approaches to be taken to implement the wishes of the Land Act,
1999 and the Village Land Act, 1999.
1.5 Hypothesis
The paper is basically grounded on the following hypothesis:
a) That Tanzania customary land law is very rich. The Sukuma customary law
is one of such rich sources, yet it has not been documented with the
exception of some patches written by Cory during colonial times which are
not very satisfactory in modern times.

6
b) That the Land Act, 1999 and the Village Land Act, 1999 provide for
customary law as having the value of contributing to the moulding of the
Tanzania common law.
c) That collection and documentation of tribal customary laws is the only way
towards having the Tanzanian common law.
The above premises might be taken to weigh the observations of the paper.
1.6 The Significance of the Paper
Study the Sukuma customary land law has the following general significance to the
administration of land matters in Tanzania.
Firstly, the paper will assist the government to identify and therefore take
appropriate measures towards making and implementing land law customary
framework in view of the National Land Policy, legislation and existing customary
land laws of Usukuma.
Second, the paper will further assist the government to put in place policy and
mechanism of customary leadership for the development of local government and
customary law in general.
Third, the paper will assist legal practitioners to ascertain the Sukuma branch of
customary land law of Tanzania as important input contribution to Tanzania land
law.
Lastly, to provoke further research, discussion and work on customary land law for
other tribes so that they should contribute the formation of Tanzanian common law
and raise awareness and keenness towards customary resources to development.
1.7 Review of Basic Literature
The basic literature available on the customary law of the Sukuma that is
specifically so is only that of Hans Cory.24
The same is also very limited in terms
of land law. Cory wrote a codified work much based on personal law, the public
law component in land law is only limited to the nature of land tenure, various
means of acquisition of land, transfer of land, inheritance and the conceptually
land use and distribution rights like land for grazing, water sources, servitudes and
easements and the customs concerning the produce of the land, having not
24
Supra.

7
differentiated which were much situational customs, the work took the
anthropological as well as sociological face, suffice to note that legal concepts
were served although to some extent they lacked the legal characteristics of
flexibility and certainty. This has prompted recent writers25
to comment that what
Cory wrote was in fact not law, which is not true, this was clarified by lawyers
who pointed later how Cory’s work was kept up to date from time to time by the
amendments made by the then Sukumaland Federal Council.26
Some other legal
concepts and customs can be supplemented from Cory’s other works.
James & Fimbo27
are the model and source of Tanzania customary land law,
although they took fewer resources from Usukuma but they provide the backbone
of the customary land law for the whole of Tanzania. What this paper discusses is
the specific supplement to where James & Fimbo could not reach as a matter of
practice.
Kennedy28
made a recent visit to Usukuma with his analysis of the impact of the
new Land Acts in Bariadi. The picture he described is true of the situation for the
whole of Usukuma concerning land law. The practicality of the land transactions
and the acceptability of the Village Land Regulations, 2001 which bear no root
from the customary point of view and being voluminous with only two regulations
on customary law provide the true insight.
The rest of the literature available provide the sources of the customary land law of
the Sukuma although they were not published as legal works. Such is the work of
Malcolm.29
From his point of view of investigating land use among the Sukuma for
many years he beared in mind the existing land tenure laws and customs, he
therefore discussed the customary law in conjunction to land use in general and
provided the relevant legal insights that this paper has made use of them.
Wijsen & Tanner30
is another recent work on Usukuma and it provides the trend of
development of customary land law from the colonial period to the present. Tanner
himself having been a colonial administrative officer in the Tanganyika
25
Wijsen & Tanner, et seq.
26
Twinning, W., ”The Place of Customary Law in the National Legal Systems of East Africa: Lectures Delivered at the
University of Chicago Law School in April-May, 1963”, University of Chicago, 1964.
27
Supra.
28
Et seq.
29
Et seq.
30
Et seq.

8
government and having worked in Usukuma as a District Officer, provides much
reliable information although their work tends to add flavor or good colour to the
colonial government in the fashion of globalization, still the same is much
authoritative of the trend of development of customary law in the real sense
compared to Cory and Malcolm who wrote more than half a century ago.
Other literature to which this paper has drawn include many articles and journals
spread and written from colonial times to independent government times. The only
note is the breakage of writing and documenting about the Sukuma after the
Sukuma were scandalized as having ‘dance societies and secret societies’
connotating illegality and Cory was sent by the colonial government to investigate
the purported association of the so called societies in insurgency activities against
the colonial government, then again later the focus of writers appear late in 1970’s
and 1980’s.31
1.8 Basic Terms in the Paper
The following terms appear here and there in the paper, some rarely appear but
they are likely to cause controversial understanding. For the purpose of
convenience, their meaning have been reduced as appear hereunder:
“Authority” in relation to Sukuma customary law means the traditional Chief or as
a Native Authority of the relevant Chiefdom like Ntuzu, Ng’wagala, etc. and in
relation to land allocation it was attributed to the basumba bataale in Ntuzu and
Ng’wagala chiefdoms and the banangwa in other chiefdoms of Usukuma. But with
the abolition of Chieftainship authority was vested in the District Councils
established by the Local Government legislation which replaced former Native
Authorities. Although the exercise of the traditional functions drastically crumbled.
“Chiefdoms” this was a fused colonial idea on what existed before colonialism as
village states scattered throughout Usukuma which for ease of so-called indirect
rule, but in fact direct administration were designed as chiefdoms and formed
individual native authorities and several of these chiefdoms formed Constituent
Federations like the Binza Federation with all chiefs of the then Maswa District.
31
Hatfield, C.R., “The Nfumu in Tradition and Change: A Study of the Position of Religious Practitioners Among the
Sukuma of Tanzania, East Africa”, PhD Dissertation, The Catholic University of America, Washington D.C., 1968;
P.17.

9
And all the Dastrict Federations of Usukuma together formed the Sukumaland
Federal Council with powers to approve by-laws made by District Federations for
the whole of Usukuma.
“Chief” this is a traditional leader of the Sukuma who in Kisukuma is called
“Ntemi” or plural “Batemi” which is associated with “kutema” (to cut). The same
is said to have been due to the ability to resolve all the judicial difficulties and cut
away all misunderstandings. Most of the Batemi came from north-west of lake
Nyanza. The myth that these leaders were Hamites was historically disproved.
What remains as true is that they came as rulling families to which the Sukuma still
trace their origin, these being the Bagolo, Babinza, Basiya, Basega, Bakwimba,
Bakamba, Bakwaya and Bahunda.
“Courts” in as much as this paper is concerned refers to customary courts which
with the advent of colonialism became native courts in the person of the chief in
his judicial capacity which later ten years before independence were designed as
local courts and after independence became primary courts.
“Gunguli” this is like a parish as geographical area, it is a traditional sub-division
of a chiefdom normally under the leadership of the villege headman or
ng’wanangwa.
1.8 Common Abbreviations
They include:
(1)Para or para, means a paragraph in Cory’s book ‘Sukuma Law and Custom’.
(2)V.L.A., means the Village Land Act, 1999; Act No. 5 of 1999.
(3)Cap., means Chapter of the Laws of Tanzania.
(4)R.E. [2002], means the Revised Edition of the Laws of Tanzania in the year
two thousand and two.

10
PART TWO:
OWNERSHIP OF LAND
2.0 Introduction
In accordance with the provisions of sub-section 1 of section 14 of the Village
Land Act, 1999, all village land can be and is indeed governed by customary law.
Therefore the only documented Sukuma customary law written by Cory applies.
The paragraphs in Cory therefore provide as far as the concept of land ownership is
concerned.
2.1 The Concept of Ownership
According to Cory, Sukuma land tenure is a good example of the ‘usufructuary
right of occupancy’, in that:
“The fundamental principle being that a man owns his land so long as he occupies it
effectively and he therefore cannot sell, pledge, or otherwise dispose of it. The system involves
no insecurity of tenure because the holder cannot be dispossessed of his land for any reason
except failure to occupy it and, since there is at present little or no land hunger, an owner is not
pressed to dispose of the land he is not actually cultivating.”32
Although Cory said so, the concept was also explained by Elias33
that:
“…the ownership is that of the group, and the individual member has mere possession.
But this possession is really more than sheer physical control by the allotee of his
allocated portion of the land; he can exclude from it strangers to the group as well as
other group members, provided that in the latter event he can show that he has committed
no breach of customary rules relative to holdings by group members generally.”
The explanations above of the concept of Sukuma land tenure is true and stood so
before colonialism or should anything be done to imitate it or preserve.
2.2 Community Land Control
We talk of the story that among the Sukuma, land was in the hands of all the
community, but it was put in trust of authority, this can be observed in Cory as
provided below:
Para 375
“As long as a holder occupies his land he cannot be deprived of it”
32
Cory, op.cit., p.111.
33
Elias, T.O., The Nature of African Customary Law, 1956; p.163.

11
Para 377
“If a holder does not effectively occupy his land or any part of it, and the need for it
arises, the authority has the right to expropriate the holder from such parts of the unused
land as it needs for allotment to another”.
Para 376
“At present the authority for allocating land and for any other transaction in land is: the
basumba bataale [Ntuzu &Ng’wagala] the banangwa in all other chiefdoms….”
The Basumba bataale; were representatives of the inhabitants of the village, their
influence was non-political and varied, they were concerned in administration of
land, also customarily informed by the village headman of any transactions in land
which took place. Also they were leaders of the village organization of communal
work. The same applies to the Banangwa who were representatives of all villagers.
2.3 The Same Land Forum?
The Village Land Act, 1999 still insist that the “village assembly” or “mkutano wa
kijiji” and “village council” or “halmashauri ya kijiji” both are as defined by the
Local Government (District Authorities) Act, Cap. 287 the former to mean “ in
relation to a village, the village assembly of that village and in relation to an
ujamaa village, the village assembly of the ujamaa village” and the latter to mean
“in relation to a village, the village council of that village and in relation to an
ujamaa village, the village council of the ujamaa village”. Unfortunately Cap. 287
only provides for the composition of the village assembly34
to include every adult
resident person to be a member and indirectly, though other functions of the
village assembly are not stated, it has to elect the village council35
its chairman and
members. The Village Land Act, 1999 on the other hand also instead of requiring
the village assembly to nominate or elect the village land council as it might
appear36
it takes away the power of community land control by requiring the
village council37
to form half of themselves to be a village land council by rashing
34
Section 55 of Cap. 287.
35
Section 56 of Cap. 287.
36
Section 60(1) of V.L.A.
37
Section 60(2) of V.L.A.

12
to talk about women representation which is not in issue, and makes it that only the
quota of women have to be approved by the village assembly.38
Sukuma community in a village assembly (Picture by pesatimes.co.tz)
The various traditional forums of discussion where serious matters such as those
affecting land in Usukuma that used to exist included the ibanza lya milimo (or
ng’wibilingo or lukiko) where all the occupiers of land holdings meet. It were
under the village headman and each kaya had to be represented. The Long’we was
a meeting of all the inhabitants of a gunguli for discussion of local affairs. It was
called by the Basumba bataale, the Ng’wanangwa could also attend, local affairs
and criticisms were discussed like dissatisfaction with village headman, abundance
of birds, lions or hyenas, lack of rain, epidemics among men or beasts. The
imposition of penalties for anti-social behavior and the application of ostracism
was the very important part of long’we. Section 53 of the Village Land Act, 1999
envisages for the village decisive committee, here the democratic customary
meeting to choose the members is seen to be provided for in the Village Land Act,
but such control is otherwise limited and of temporary nature as it only concerns
interest on village boundaries,39
not the entire village land control.
Customarily a person could come into ownership of land in four main ways. It
could be by adverse possession by clearing of a plot in the bush (nhinde) para 381
38
Section 60(2)(b) of V.L.A.
39
Sections 48 to 59 of V.L.A.

13
40
or by allocation in an inhabited area (ilala) para 384 41
or allocation of a
relinquished holding (malale ga saka or malale ga fuluka) para 392 42
or holding by
acquisition through inheritance, para 400. Among the Sukuma, a bachelor could
not demand the allocation of a complete holding, but could apply for and receive a
single field.43
A new comer could be allocated land, even a private grazing land
(ngitiri).44
2.4 Conclusion
One may observe from the foregoing that although all land in Tanzania is public
land, which concept is in agreement with the Sukuma. The disappearance of
traditional institutions of land control and the democratic participation in
community land control have made worse the problems of scarcity of land,
insecurity of tenure and fear.
40
Section 14(1)(b),(c) of V.L.A.
41
42
43
para 409.
44
para 436.

14
PART THREE:
ADVERSE POSSESSION AND ABANDONMENT
3.0 Introduction
These days land in Usukuma is very scarce, therefore instances of adverse
possession and abandonment are rare but if they occur, they are within the
parameters of customary law, as the concept of prescription is not known to the
Sukuma.
3.1 Adverse Possession
Acquisition of land by adverse and uninterrupted possession gives rights of use
among the Sukuma. More so, in the old days, building of a good house and
manuring fields assured the possessor of no eviction either himself or his
discendants which could be exacerbated by an unscrupulous village headman.45
Therefore, in any relevant case the law stands as per;
Para 381 A
“A native or a stranger who wishes to clear a holding in the bush does not need to ask any
authority so long as his plot is not near the plots of other cultivators. The bounderies of a
gunguli, if they cut through areas of heavy bush, and sometimes vague and therefore the
headman of a gunguli which share the bush will have to decide among themselves to
which gunguli the new-comer belongs. His arrival may be the occasion for fixing the
bounderies”.
Para 381 B
“If it is obvious to which gunguli the nhinde belongs, the newcomer is expected in due
course to inform the ng’wanangwa in his presence. The ng’wanangwa himself or his
deputy may then ocassionally visit the settler. A holding of this kind is carved out of the
bush without the help of the villagers and the hut is also built without their assistance”.
3.2 Abandonment
As to how one would be able to adversely possess land among the Sukuma in this
category apart from clearing land, it could also follow one of the instances
elaborated below. That is, according to Cory, the reasons for ones abandoning land
would be:
45
Malcolm, p.51, et.seq.

15
(i)abandoning land in the old country for – fear of illness or misfortune;
inheritance; invitation and offer of help from friends and relations in another
area; quarrel with a member of Authority.
(ii)abandoning land in the new country for fear of ostracism; witch-weed and
decreasing crop yields in general; increase in stock and insufficient grazing;
possibility of acquiring a holding unrestricted in size.
Wherefore the law governing the newcomer stood as;
Para 382 A
“The new-comer (nsesi) can occupy as much as he likes and no bounderies are
demarcated by the authority”.
Para 382 B
“If there are already cultivators in the neighbourhood, the new-comer must ask the
authority for land to be allocated”.
Para 382 C
“If the new-comer finds neighbours in the bush area bounderies are demarcated, usually
by digging shallow pits at intervals of about five yards in light bush, or by marking the
bounderies with an axe in dense bush”.
Under Sukuma land law46
, an abandoned field cannot be taken by another without
permission of the former cultivator or the authority, therefore, for cultivated fields,
one cannot improve or cultivate and seek to retain the field as his own shamba. But
the notable instance here is the re-allocation which can be featured, especially for
cultivated land for descendants of the first occupier in whom landed property
remains, therefore restoring all previous rights, as in the saying: ”mbasa lya ndugu
wone, uo tema kunu” (my ancestor’s axe cleared this land). Malcolm47
had the
opportunity to say that if the farm was allocated to someone else during the period
of absence its return to the original owner might be arranged by mutual consent
after harvest.48
Cory further illustrates this rule by saying that if a man cultivates a field which has
not been allotted to him by the authority, not recognized by the authority, which
can, at any time, allot the field to an applicant, though in practice it is not likely to
46
para 410.
47
Malcolm, D.W., Sukumaland: An African People and Their Country, 1953.
48
P.51.

16
do so. This therefore means that one could only obtain land by adverse possession
by clearing a nhinde and be recognized. Any abandoned field, even if the field has
remained fallow for a long time (ilale) cannot be adversely possessed by another49
.
Zukuyo v. Nusome50
In the judgement it was stated that no man can claim a shamba as his unless it is
explicitly granted to him by a village headman; no one has a right to sub-let his
shamba without the headman’s permission; no man has a right to cultivate a
shamba in a gunguli other than that which he lives, except temporarily and with the
permission of the village headman.
In old days, the Chief had the authority to open new migunda ya ikuru in a gunguli
where none existed before.51
That an abandoned holding need not remain an indivisible holding. The authority
has the right to allot single fields from it or to allot the holding as a whole.52
3.3 Occupation by Prescription
The idea of acquisition by long possession is much more amplified by James &
Fimbo in that, it was much part of received law to permit a person to acquire an
interest by long and uninterrupted possession and user, which was not the concept
of customary jurisprudence, where the authors further says, that:
“However, we venture to suggest that the customary system could not rationally
accommodate such a concept because it was quite normal within the system for a stranger
to occupy and use land of another without any need to pay rent or otherwise acknowledge
the title of the grantor”. 53
The above position is true even among the Sukuma and indeed throughout Africa.
The case of Kuma v. Kuma54
illustrates that, Kwamina Kuma, the plaintiff won the
case in the court of first instance over the suit land, on appeal Kofi Kuma, the
defendant won. In considering the appeal decision, the Privy Council, observed
that, the fact that the defendant proposed to sell the land in dispute and being
49
para 410.
50
Cory, op.cit., p.124
51
Cory, op.cit., p.127;para 421
52
para 394.
53
p.532.
54
(1938)5 W.A.C.A. (Ghana).

17
objected by the plaintiff, who then sued, where the defendant claimed to have
derived his title to a person who cleared a virgin forest as a follower by permission
of a chief. The plaintiff alleged that the chief that the defendant mentioned and his
followers were permitted by another chief who was the successor to the plaintiff’s
ancestress who was the owner of the land in dispute and whose stool the plaintiff
occupied at the date of action.
Notwithstanding the fact that the defendant and his ancestors were in occupation of
the disputed land for more than six generations uninterrupted, the Privy Council
said:
“It appears therefore, that among the natives, occupation of land is frequently allowed for
the purpose of cultivation but without the ownership of the land being parted with. The
owner of the land being willing to allow such occupation so long as no adverse claim is
made by the occupier; the occupier knowing that he can use the land as long as he likes
provided he recognizes the title of the owner”.
But it would appear as James & Fimbo observed,55
that the necessity for
recognizing titles to land by occupation and use arises when emphasis is laid on
land use or where, land commands a price with endless land litigation arising from
conflicting claims to title. That in the absence of remedial legislation there was
pressure on the courts to provide a remedy, hence the courts attempted to provide
remedies by (a) application of general limitation enactments (b)prescriptive
doctrine, and (c)acquiescence doctrine. Such pressure did not take place in
Usukuma due to the system of land tenure which was more secure as it consisted
individual land rights, restricted transfer and protected by community control.
Nevertheless, the case of Kapaya Ngaka V. Musa Mahola56
indicated the direction
of the legal position. The dispute in question arose in Sukumaland, the respondent
Musa Mahola, was the plaintiff in the court of first instance. He sued the appellant
for a developed piece of land. The respondent alleged that the land in dispute
originally belonged to his father, who was forcibly dispossessed of it by the late
chief Sangija. Chief Sangija died about 26 years before the action arose but before
55
Op.cit., p.536.
56
James & Fimbo, op.cit., p.540.

18
he died he granted the land to the land to the appellant who was not aware of any
defect in the chief’s title.
The appellant was not on the land for 15 years before being sued by Musa, during
which time he had extensively developed it by planting permanent fruit trees and
by building a house on it.
The court of first instance gave judgement for the appellant and the respondent
appealed to the District Commissioner who held that the land in dispute belonged
neither to him nor the appellant but to the late chief. The appellant then appealed to
the High Court against that judgement.
KIMICHA,J. held that, “This appeal is allowed on the ground of laches. It appears
that about fourty years have now passed since Musa’s father was dispossessed of
the land and yet neither Musa’s father nor Musa himself instituted a claim for it.
Musa has also allowed Kapaya to be in possession of the land for 13 years without
protesting.
Kapaya got the land lawfully from the late chief and in the absence of the chief,
Musa cannot now satisfactorily establish his allegation that the chief took the land
by force from his father.
This is a very stale demand. Musa has slept upon his right and acquiesced for a
great length of time. He cannot therefore call this court into activity”.
But in contradistinction to the system of tenure of other parts of Tanzania the
system of land tenure of Usukuma gives greater security with more incentive to
improvement and investment than is often associated with a landlord and tenant
regime of the Wahaya called Nyarubanja, Matonge in Ngara, Obusi of the
Wakerewe.57
3.4 Conclusion
The Village Land Act, 1999 brings in the period of limitation for the village
decisive committee to be prescriptively 12 years as appears under sub-section 2 of
section 57 therefore putting aside the idea of not taking into account prescriptive
57
Bi Zena d/o Juma v. Gordian Gatahya (James & Fimbo – p370); Bi Juliana Rwakatare v. Kaganda (James &Fimbo
– p.543); and Kataso Kabondola v. Mulongo (James & Fimbo – p.537).

19
periods as the Sukuma used to do. This is an influence of development of land law
throughout Tanzania.58
Land is scarce any attempt to occupy some piece of land
easily amounts to encroachment attracting prosecution to local authorities.
58
Philip Mtusha v. Stephen John (James & Fimbo – p.533) where it was held that under Chaga law there is no time
limit after which a kihamba cha asili cannot be claimed. Also in Mesa s/oMwakatobe v. Lijumbete s/o Mwakatobe
(James & Fimbo – p.547) the sick was given licence to build a hut in order to attend his illness for 14 years, that
style of occupation couldn’t establish a permanent title to the land.

20
PART FOUR:
SALE AND DISPOSITION OF LAND
4.0 Introduction
For a long time sale of land was nor recognized by the Sukuma save for instances
here and there which were not authorized. This Chapter examines that concept and
the new position brought by statute.
4.1 The Sukuma Policy of ‘No Sale of Land’
Traditionally the Sukuma remained reluctant to sale land, on record their concept
was as can be seen below:
Para 380
“A holder cannot sell his holding or any part of it or enter into any transaction in which
land is the subject”.
Cory referred to a report by D.W. Malcolm, which he decided to call Sukuma Land
Utilization Report59
in giving historical reasons as to the rationale for the
customary Sukuma settlements, that, besides considerations of soil, rainfall and
water supply which influenced the locations of earlier settlements, that the
distribution of population was to a considerable extent controlled by considerations
of security. He therefore believed that it was agreeable to the pattern of settlements
and organization of communal labour. That as to prohibition of land sale, Cory
believed what the report said, “Then came the German Administration and with it
the cessation of tribal warfare. It became safe to settle further from the center of
the village. The German authorities are said to have prohibited the system of land
sales and individuals anxious to obtain land began to move further afield and clear
new areas”.
Although Cory ended there in as far as finding the rationale for why the position
stood that transaction was not allowed, he was himself a colonialist, he intended to
praise the Germans at the expense of the Sukuma, but James & Fimbo seems to
have a more elaborate answer,60
that:
35 p.116.
60
p.359.

21
“In theory there is no individual ownership of land in Tanzania, for all land is public land.
However, a holder of a self acquired property enjoys practically all the benefits of
ownership….His powers of inter vivos disposition must be exercised in conformity with
restrictions, statutory and customary….In contrast, occupational rights in land do not
carry a power of disposition and any attempted disposition thereof may cause forfeiture
of the rightholders interest in land”.
They further proceed to say:61
“The clan elders have the responsibility of ensuring that the interests of the group as a
whole are preserved and that equality of treatment among the members is maintained.
Basically, the position is that they see that the customs of the group, whatever precisely
they might be, are observed: that individuals get their rights in family lands; that if
strangers are admitted to privileges in regard to lands of the group (and such admission
often occurred if there was plenty of land and authorities felt that the group would be
enabled better to defend and protect its interests by some increase of manpower) those
strangers are not given privileges which would damage the interests of the actual
members of the group. Clan elders are often called upon to witness land transactions and
act as arbitrators in land disputes. As arbitrators they may order family land to be
partitioned but any matter decided by them would not be res judicata in a court of law”.62
But the most agreeable view, and relevant to Sukuma customary law, is that of one
of the earliest and ablest African customary law jurisprudence writers, Elias63
that:
“There is no other principle more fundamental to indigenous land tenure system
throughout Nigeria than the theory of inalienability of land. Various reasons have
been advanced for this. It is said by some that the notion of inalienability derives
from a religious or magico-religious attitude towards the land regarded as a sacred
trust of the living undertaken in memory of the dead. Some, again, postulate a
myth of the original ancestor according to which the common origin of the
members of a community renders inconceivable the giving away of ancestral land
to non-autochthonous individuals or groups.” He further said: “…that the
community and family land has been held inalienable from the desire to preserve it
for the requirements of the owning group, past, present and future.” The last being
a socio-economic device to protect the interests of present and future generations.
61
p.428.
62
Section 18(1)(d)(t) of V.L.A.-land under customary law regarding any matter, under the authority of the village in
which it is situated.
63
Elias, T.O., Nigerian Land Law and Custom,1962 (at p.181).

22
Therefore per the pure Sukuma customary law, para 412 stands as:
“A holder cannot give a field to another man, whether relative or stranger, without
permission of the authority”.
The above paragraph refers to transfers of a single field which is distinguished by
the fact that in some parts of Usukuma it was formerly allowed for a man to give a
field to a relative, but not to a non-relative without the permission of the authority.
As regards these single fields, the position is further elaborated, in these terms:
Para 413 A
“If a holder relinquishes his holding, the occupier of a single field within the holding
cannot retain the field without permission of the authority”.
Para 413 B
“If a holder has allowed a person to cultivate a field, or has given a field to anyone as a
present, such action , whatever may have been the clauses of the contract, is not
recognized as valid after the death of the holder. Even if the occupier of the field in
question can prove that hew paid for permission to cultivate it, he has to return the land
immediately on the death of the original occupier and has no right to claim
compensation”.
In Kilumba v. Ngereza64
Kilumba claimed from Ngereza a cassava field, which his
brother Masolwa had given him when he himself moved to another village. The
field had been allotted to him by the ng’wanangwa to Ngereza and the court held
that it therefore belonged to Ngereza.
The only kind of transaction that is expressly recognized at Sukuma customary
land law is borrowing land.65
Where a man may borrow fields, not because he has
insufficient land and cannot obtain land in his village, but because he is short of a
certain type of land like for the purpose of cultivating groundnuts.66
Even for
patches of single fields, the legal position is that, if a man has come across and
cultivated a field for one season, no other man can cultivate it without permission
of the former cultivator or the authority, even if the field remained fallow for a
long time (ilale).67
64
Cory, op.cit., p.125.
65
para 414.
66
Also in para 411.
67
para 410.

23
James & Fimbo68
reduce the power of control over land on disposition to be under
the restriction of a clan or a tribal nature. Among the Sukuma the position seems to
be the same. What James & Fimbo say “Restrictions against settlements in tribal
lands were generally imposed by the political heads of the community, that is,
chiefs or elders acting in an administrative capacity. The tendency has been for
these powers to be taken over by the new statutory Native and Local Authorities in
many areas”.
Whereas James69
writes that70
“The idea of landholding depending on beneficial
user is a recurring theme in nearly every study of customary land tenure. As a
principle it still prevails in areas where proprietary rights in land have not evolved
or wherever the land is held communally. Under these forms of land tenure the
controlling authority may re-possess itself of or re-allocate, land which is not kept
under effective cultivation”. James further comments,71
that in comparison to the
tribes of the Waarusha, Wasambaa, Bahaya, and Wachagga who occupy a smaller
area recognize individual titles and permits sales of land while the vast land
occupied by the Wasukuma, Wanyamwezi and Wagogo individual ownership is
not recognized and they forbid sales of land.
The case of Jephania s/o Shimba v. Musukas/o Nyanda72
provide illustrative
explanation, in that, under Sukuma law, no sale of land was allowed and no
compensation was payable for acts which the cultivator knew perfectly well were
illegal and disallowed. Ther the appellant, Jephania appealed against the judgement
of the District Court in Mwanza reversing the decision of the Kongolo Primary
Court in civ. case No. 25 of 1965. The respondent Musuka claimed half acre of
land valued at Shs. 300 which was in the occupation of the appellant. The
respondent’s case was that in 1957 he had sold two houses on his land to the
appellant for Shs. 70 About the year 1962 the appellant started cultivating the land
with the respondents permission, until he could get his own land. Later the
appellant built another house on the land. The appellant’s testimony before the
Primary Court was that he bought both the houses and the land.
68
p.427.
69
James, R.W., Land Tenure and Policy in Tanzania, 1971.
70
p.279.
71
p.280.
72

24
The Primary Court found the evidence given by the witnesses of both parties were
quite true on the ground that the claimant sold the plot of land including its
contents to the defendant. This is quite incorrect since at least two of the
respondent’s witenesses Sagu s/o Masalu and Chemu s/o Kwangu said that only
the houses had been sold. The High Court said, in any case, as the primary court
ordered the respondent Musuka to pay Shs 1063 to the appellant Jephania upon
payment of which the respondent would resume possession of the land, the Shs
1063 representing materials used by the appellant in the construction of the new
house on the land and the value of the 4 paw paw trees. That as Musuka appealed
against this to the District Court, where it was rightly considered in light of
Sukuma law that the land in dispute had never been sold to Jephania, the relevant
rules being paras 380 and 414A of Sukuma Law and Custom by Hans Cory.
That both tha facts and authority was correct that the respondent never sold the
land to the applellant and that he knew he was cultivating the land for three years
by leave of the respondent on condition of finding his own land. Building a house
was unjustified and that whatever was done on the land was at his own risk and he
gambled and the gamble did not come off.
4.3 The Invent of the Village Land Act
Paragraph (d) of sub-section 1 of section 18 of the Village Land Act, 1999 brings
in the concept that although the customary right of occupancy is in every respect of
equal status to the granted right of occupancy its disposition has to be in
accordance with the principles of customary law. Therefore as much as sale is
concerned, the same may not be sold.
But in accordance with sub-section 1 of section 30 of the Village Land Act, 1999
the power of sale of land under section 131 to 133 of the Land Act, 1999 are
extended to village land. Whether this was a top-down decision, it has not been
proved. To this extent the Sukuma customary law prohibiting land sales is kept
aside, although sales have to be to citizens of Tanzania.73
The Village Council is the apex authority of land transfer, it receives notice of
intention to sell74
and it may refuse to allow sale after due investigation under sub-
section 4 of the same section. But the approval will not be required if the sale was
73
Section 30(2) of the V.L.A.
74
Section 30 (3) of the V.L.A.

25
prompted by the lender by virtue of a mortagage. And if it is not registered at all in
accordance with sub-section 6 of this section it is void.
4.4 Conclusion
Therefore sale of land in Usukuma is allowed by statute. How much this is
convenient to them is not known but at least it is convenient for good government.
But it is recorded that the Sukuma law and custom is very sensitive to situational
changes, this must have been long awaited by them although they were reluctant to
sale where land was plenty, now land is scarce they sale, may be to realize
whatever value that now land has.

26
PART FIVE:
ACQUISITION OF LAND BY INHERITANCE 75
5.0 Introduction
This is the area where the substance statute law covers, and as per the customary
law the second schedule to the Local Customary Law (Declaration) (No. 4) Order,
1963 rules on inheritance are provided. The provisions of sub-section 2 of section
20 of the Village Land Act, 1999 is seriously in concern much as rights of women,
children and disabled people, although one would critically be taken to task to
reconcile the National Land Policy and any other written law in view of the
aforesaid section.
5.1 The Substance of Inheritance among the Sukuma
It is a different and way of obtaining land in accordance with Sukuma customary
law, through acquisition by inheritance or sometimes referred to as continued
occupation and by adverse possession by clearing land (nhinde)76
can a person
acquire a holding without the permission of authority.
Even a person who acquires land allocated from a relinquished holding (malale ga
saka or malale ga fuluka) would not be able to hold the same without the consent
of the authority77
. For in this case the holding reverts to the authority for re-
allocation78
and further to this the only exception is if the son takes over the
relinquished plot from his father just as he takes over in the case of his father’s
death, without special permission of the authority.79
Acquisition by inheritance of land among the Sukuma is also special in that it is
different even from allocation in an inhabited area (ilala)80
where arerlative or a
good friend chooses to settle in the village of the said relative or close friend,
although even a stranger can ask for such land and get it81
. The new-comer within
the house of the relative or friend approached the authority and if he is a son or
75
para 400; Section 18(1)(h) of V.L.A.
76
para 381.
77
para 392.
78
para 392 B.
79
para 392 C.
80
para 384.
81
para 384A.

27
brother of the village inhabitant still he had to ask for allocation to establish his
own kaya82
and with enquiries being made and satisfaction of the authority
obtained the stranger obtains land.
5.2 The Concept of Migunda ya Ise
According to James & Fimbo,83
it is the universal patrilineal principle of
inheritance that descent is reckoned almost exclusively through males. This is true
among the Sukuma. The anthropological point of view is in agreement with this
position, in that, as the Sukuma inherit through males84
however distant the
parternal relative of the deceased can be with specific regard to family or clan land.
Cory85
noted that in the distant past Sukuma customary law did not recognize the
right of women to inherit property, but according to Schneider86
the Sukuma as a
people with patrilineal system where property as well as name passes from father
to son, for the Sukuma to do so is not wonderful, since this use is a mix of what is
referred to as unilineal descent, that is inheritance from father to son (nkuruwabo)
which if compared to, even among the matrilineal tribes property passes from
mother’s brother to sister’s son, and hence, the so called unilineal descent as per
Schneider87
. This being the position, most of the Sukuma lineages, these being
groups of lineally related people, utilize patrilineal descent by founding families in
the usual way, that is, with property derived from the father or parternal relatives
called numba ya buta and the wife nkima wa buta. Only in few cases, which cannot
go to lineages, since they revert to buta, that is patrilineal, for at the customary law
of the Sukuma, that if children have to inherit and obtain the status of their father,
they must pay back the father’s maternal relatives bridewealth (if the same was so
obtained) paid for their mother88
in this way they cease to be referred to as numba
ya bugongo89
, just as in the case of a father wishing to disinherit his son may curse
82
paras 384 B & C.
83
p.167.
84
para 557.
85
p.154.
86
Schneider, H.K., Livestock Equality in East Africa, 1979.
87
p.111.
88
para 594.
89
para 38.

28
him by the procedure of kuzimula where he would return the son to the wife’s
family and demand some heads of cattle90
.
That the East African characteristic of extended families where the wife or wives
of a man cooperatively conduct production activities, not only depending on land,
which is challenged by movable property in the form of cattle, to which it is said
the Sukuma have taken to in recent historic times, especially with the coming of
the ruling families, in places where cattle were introduced.91
According to James & Fimbo92
women do not inherit land from their deceased’s
father since a woman on marriage goes to live with her husband. That means while
on the husband’s household conducting production activities of the kaya, both for a
wife or wives and their children, so are the daughters prepared to be future good
wives in order to grow as prosperous families of their own as possible leading to
happier lives. Cory93
witnessed in Usukuma there was no such thing as a girl who
does nothing, that not only does a mother expect her daughters assistance in the
house, but grandmothers, aunts, and other female relatives also expect help, now
and then from the young girls. Therefore this has to do with the whole institution
of marriage.
Again, according to Cory94
for unknown reasons the Sukuma chiefdoms started to
recognize the right of inheritance for females starting with Ng’ungu and
Ng’wagala, it is hereby observed that this may have been influenced not only by
statute but by the attitude of Sukuma customs being sensitive to situation, for
example, with the passing of the Rules Governing the Inheritance of Holding by
Female Heirs, 1944,95
for it is noted of the same in Usukuma at least from 1944.96
For the wife, it was provided for later in the Local Customary Law (Declaration)
(No.4) Order, 1963 in terms of rule 20 and rule 50 that if a deceased husband
leaves no relative whatsoever, his wife will inherit his property. Subject to the
90
para 628.
91
Schneider, op.cit p.112.
92
p.193.
93
p.41.
94
p.154.
95
These rules were made by the Wahaya in 1940’s, under the Native Authority Ordinance, 1926 (repealed) and
were saved by the Local Government Ordinance, 1951 (repealed), the Sukuma felt it was high time to also
introduce changes.
96
Zinza Appael Case 42/44; found in Cory,p.154.

29
principle that a woman cannot inherit family or clan land. Several times the
aforesaid rule has been put to challenge by courts.
Therefore for the Sukuma the nkuruwabo who is the heir has the obligation to take
over all the estate or leave it,97
the nkuruwabo cannot choose certain plots and the
house and part to another person some plots or to an applicant.98
Since only the son
can inherit without consent of the authority, for any other relative to take over the
estate sanction of the authority is required and the same will be allotted to him,99
if
there are no sons, a daughter who was living with her husband in the deceased
father’s holding or a sister and her family on the holding of her brother would be
entitled to inherit, this rule is subject to sub-section 2 of section 20 of the Village
Land Act, 1999.100
Trees nearer to the house, rice crops (majaruba) as well as
manured fields are indivisibly inherited with the house101
.
The extended family with each wife having been established her household and
fields either within the husband’s homestead (kaya) or at a far distance but all the
same, the household is part of the main kaya of the husband and therefore at death
the question of distribution of land do not arise each household knows the fields
that belong to them, they are inherited as such for all kayas of the deceased.102
The kilaba, which is the property of the husband and which is cultivated jointly by
the whole extended family, at death of the owner, may be devided among the kayas
of the deceaced.103
The general rules of inheritance as promulgated by the Customary Law
(Declaration) (No.4) Order, 1963 (hereinafter referred to as the Order) which was
adopted in Usukuma recognizes the clan council and therefore the family council,
but Rule 5 of that order insists on the heir to be the brother (similar to nkuruwabo)
the deceased. On this account, James & Fimbo104
say that the rules of inheritance
basically safeguarded the deceased’s immediate family descendants as the key
97
para 400A.
98
para 400B.
99
para 401 A.
100
Act No. 5 of 1999.
101
paras 403, 404.
102
para405.
103
para 406.
104
p.167.

30
institution of society. As far as inheritance is concerned it has been observed that
the rules of the Order on inheritance of family or clan land are similar, for self
acquired property they are also similar105
whereas Cory provided in paras 557 to
566 where the principle of ascertaining nkuruwabo, nzunakwandya, nzunakabili;
kadatu;etc. the same has to be followed, then therefore, daughters are included but
in the third degree just like what the Order provides106
. Property belonging to
women among the Sukuma is inherited in the sense that, if they are unmarried girls
or wives without children, by their father or full brothers and sisters or a paternal
uncle or the nearest paternal relative, each following failure of the previous as
mentioned.107
For wives with children are the children in sequence according to
their age and share in descending scale of value,108
in case of wives husbands are
totally excluded, in contrast, in the Order, the wife will inherit the husbands
property only if there were no relatives whatsoever, so does the husband for the
wife’s property.109
But while the Order provides for grandchildren to step into the shoes of their
deceased parents110
to the Sukuma, on the other hand, if the single wife family is
concerned, the grandchildren become minor and share part of the estate of their
grandfather after all their paternal uncles and aunts, until their nkuruwabo grows
up111
and if it is the extended family the status of nkuruwabo remains with the
members of the family of the first wife as long as there exists a younger brother
alive who can take over. If there are no younger brothers, the status is assumed by
the eldest son of the second wife112
.
As to the rules concerning legitimate and illegitimate children, the Order and the
Sukuma customary laws are almost similar with minor variations. Where for
instance under the Order legitimizing a child by marriage by parents does not make
it equal with the one born in the wedlock for purposes of inheritance, for such an
issue though born first will inherit after the legally born children, so does those
105
Rules 19,20,21,22,23,24,25,26,29,30,31.
106
Rule 25.
107
para 567A.
108
para 567B.
109
Rule 50.
110
Rules 34-37.
111
paras 562-565.
112
para 566.

31
legalized by special payments being able to inherit after those legitimized by
marriage,113
wheras in accordance with Sukuma law and custom legitimization
(kukindikamata or kukwang’wana) the child joins the paternal family as usual and
becomes heir to it. This could be by paying bridewealth and marrying the woman
or payment of cattle for each child and compensation for rearing it or by paying
bridewealth on behalf of an illegitimate son.114
Only that it is important to note that
before legitimizing a child, the man named as father would be required to pay
misango115
as compensation for causing pregnancy (kutwalilwa nda) even if the
man proceeds to marry the woman, and for each child116
and so the lover is
allowed to proceed paying bridewealth.117
Under the rules of the Order, the illegitimate child cannot inherit patrilinealy
except under a will, and that the illegitimate child inherits as legal heir of the
grandfather on the mother’s side, this is similar to the Sukuma law118
that the child
able to inherit its mother’s property, only if the mother of the illegitimate child left
other legitimate children the illegitimate will inherit its mother’s property along
with other children.119
To the Sukuma the illegitimate child belongs to the maternal
family, if it is a boy, he is entitled to maternal grandfather’s estate, with its uncles
(mamiye) if any, if the maternal grandfather has no son, the illegitimate child
becomes nkuruwabo of his grandfather.120
113
Rules 41&42.
114
paras 269-275.
115
para 288.
116
para 298.
117
para 294.
118
Rules 38, 40&43.
119
Rule 39.
120
paras 267&268.

32
Clan meeting in Usukuma (Pcture by Leticia Nkonya, PhD)
5.3 Conclusion
The Sukuma aspires legitimate offspring for continuation of ancestor spirit and
own prosperity. Therefore he is very keen and strict to marriage customs and
therefore obtaining immortality through children he may sire.

33
PART SIX:
LAND FOR PUBLIC USE AND PRIVATE USE
6.0 Introduction
Land distribution in Usukuma has always remained as traditional. The following
analysis of the status and pattern gives much of the historical face and what can be
expected as can hold the future.
6.1 The Status of Land
The Village Land Act, 1999, is the only principle legislation in Tanzania
recognizing, institutionalizing and implementing traditional public law, however
general and inadequate it is121
and subjected to the Land Act, 1999122
in that, it is
the policy for the latter to be the squatter of the former, contrary to the dual system
of tenure under the National Land Policy, 1995, although customary law is the
source of land law. The equality of status between the two being political. It is
therefore implemented as if the question of customary law is temporary, it is on its
way to wither and let received law take over,123
even if this is the case, what
remains of it has much to do with treated African attitude, as no efforts were
employed to harness the benefits for the Tanzanian. History will tell its fate, that it
lacked the shepherd just like native American law, swallowed by western law124
the tide of world politics too heavy for African customary law, however adaptable
it is it has no life.
Within Usukuma land for public use always constituted all the uncultivated land.
As all the fields became open for cattle and other beasts to feed for any person.125
The feeding of beasts was allowed for the Sukuma and non-Sukuma, residents of
the gunguli and non-residents notwithstanding the number of livestock, but with
the scarcity of uncultivated land, this position has changed as it will be seen below.
121
Section 180(1) of the Land Act, 1999 provides that: “Subject to the Provisions of the Constitution and this Act,
the law to be applied by courts in implementing, interpreting and applying this Act, and determining disputes
about land arising under this Act and or any other written law shall be – (a) the customary laws of Tanzania,….”;
also section 18(1) of the V. L. A. provide that customary right of occupancy is in every respect of equal status and
effect to a granted right of occupancy.
122
Section 34(4) of the Land Act, 1999 which maintains that when the granted right of occupancy includes land
occupied by persons under customary law, those persons shall be moved or relocated.
123
Park, op.cit., at p. 139.
124
Rosser, E., “Customary Law: The Way Things Were, Codified” (2008) 8 TRIBAL LAW JOURNAL, p.18.
125
para 432.

34
6.2 Pattern of Land Use
Every person was allowed to hold njingo.126
This was a demarcated land by thorn
or euphorbia trees or sisal that used to be not more than two acres. As part of the
homestead could partly be cultivated or uncultivated but was left for feeding of
calves, sick and old cattle while the herd is away. The njingo was owned by the
homestead alone. This land is still available in Usukuma and protected by the
Village Land Act, 1999.127
Igobe was also available for the Sukuma who could afford to keep a bigger field
wherein were located the kaya, migunda and other grazing land inclusive and
owned by a person. Normally it was demarcated by sisal or euphorbia trees planted
at relatively far spaces.128
Such right still exists under the Village Land Act,
1999129
. Under para 434B the owner who did not feed his cattle over the whole
Igobe could cut grass and sell.
Ilale. This was land, where the owner could not allow anyone to bring cattle to
feed within the cultivated field after harvest until he himself feeds his cattle within
the ilale first. There the field becomes open for all to feed their animals.130
Owners
of such fields therefore who did not keep cattle could be asked for their permission
before driving cattle to feed in. The owner could cut grass (mabelele) and sell.131
The commonest piece of grazing land in Usukuma known as Ngitiri, which still
exists but have almost dwindled were devided into two categories. Ngitiri ya buli
kaya, this was a piece of land allocated to every holder of land, even a stranger
could be allocated although he did not own cattle132
if land was available together
with other fields. Such personal grazing field were located by euphorbia trees or
sisal or by digging lines to demarcate.133
126
para 433.
127
Section 12(1)(b).
128
para 434 A.
129
Section 12(1)(b),(c).
130
para 435A.
131
para 435B.
132
para 436.
133
para 437; Section 12(1)(b),(c) of the V.L.A.

35
The owner of a personal ngitiri who did not use it could allow others to drive cattle
to feed in.134
He could even lend it to another to cultivate crops in accordance with
principles in paras 412 to 415, the remains of the harvested crops (mabelele)
belonged to the owner of the ngitiri.135
This practice still exists in the form of
leases as it will be seen later.
The owner of a personal ngitiri had to give it if he was asked by the authority, if
there was a person in need of cultivating it or for the community.
Ngitiri ya Igunguli or community ngitiri, this land shared by the whole parish
(gunguli) could be established by the village authority or the Veternary
Department. They were in those days opened by the Ntemi for the latter while the
former were opened by the village Headman. Such right is envisaged by sub-
sections (1) and (7) of section 13 of the Village Land Act, 1999.136
The sizes of the community ngitiri were normally equal and demarcated by stones,
sisal or by trees planted, hills, rocks, etc.137
The community ngitiri were purposely
for the exclusive use of the residents of the area, especially those for the village,
the ones for the Veternary Department could be used by all.138
Every cattle owner was allowed to drive cattle once it was opened.139
After years of
use the elders or authority could allow it to be cultivated and allocate another area
to be ngitiri. Several such areas could be available, crops that yield faster could be
allowed by authority to be cultivated in ngitiri before time needed for feeding
cattle. Strangers to the community were also allowed to use it.140
134
para 438 A.
135
para 438 B.
136
para 440.
137
paras 441 & 442.
138
para 443A & B.
139
para 443 C.
140
paras 444-447.

36
Picture of ngitiri in Usukuma (foodwewant.org)
6.3 The trend of Land Control
It would suffice to remark the trend of lands set aside as ngitiri in Usukuma. With
the abolition of chieftaincy soon after independence leaving no controlling power
over customary law via the African Chiefs Ordinance (Repeal) Act, 1963141
the
authority in respect of preservation of lands set aside as ngitiri became weak.
Further to this, it has been observed, that the changing of local government
institutions control of communal lands and regulation of African land tenure away
from the traditional authorities led to the whole structure to crumble and instead
vacuum became obvious situation in Usukuma. That there was, vivid absence of
uniformity of land allocating bodies, lack of central control, diversed policies,
cases of multi allocation of land by different grantees, overriding of governmental
policies and absence of rules and norms for guidance of the allocating
authorities.142
From the 1st
of January 1970 through to 31st
of December 1977 when
implementation of the villagization programme was carried out, some people were
relocated from traditional settlements to newly established villages to obtain social
services easily. This is said to have interfered land set aside as ngitiri to the extent
141
Act No. 13 of 1963; The Chiefs (Abolition of Office, Consequential Provisions) Act, 1963 (Act No. 53 of 1963);
also the African Chiefs Act, 1969 (Act No. 53 of 1969)(Cap. 252)[R.E. 2002].
142
James & Fimbo, op.cit., pp.68-69.

37
that some lands were abandoned and others directly controlled by village
authorities that were re-established.143
That due to increase of population of people and livestock in the established
villages during 1980’s and the automatic end of emphasis on villagization led
people to re-assume previously private and communal ngitiri either as theirs or
their clan and others established new ones or changed their use.
Therefore as Kennedy argues144
, communal ngitiri faced resurrection of private-
family-clan ngitiri and totally collapsed. That few communal ngitiri’s still exists
under village governments, these patches of lands are mainly for tree conservation
and not grazing lands. All land is in private hands therefoe making it impossible
for village councils to establish land set aside as ngitiri.
6.4 Easements and Servitudes
The Sukuma seems to have the idea of servitudes and easements to be expressed in
the existence of Nzira ya maguru and Ipanda, both being public servitudes. As to
private servitudes, the stand seems to be that well expressed by James and
Fimbo145
that a dominant owner is entitled to object the servient owner who
prejudices the enjoyment by any substantial interference in the former’s exercise of
his rights. And since there is no authority in customary law in Usukuma or other
parts of Tanzania the rules governing the nature of easements and rights to be
protected are under the Land Act, 1999.146
Nzira ya maguru.147
The right for
passage by foot, just as now protected by statute under the Village Land Act,
1999148
where it even precisely defined149
and under the Land Act, 1999.150
Customarily, any owner of a field in Usukuma could change the path within his
holding if he could not make it inconvenient for users of the old path. In other
places of Usukuma, it was not allowed short of leave of the authority.151
It follows
143
Section 15 of the V.L.A., 1999.
144
Kennedy, G., The Impact of Tanzania’s New Land Laws on Customary Rights of Pastoralists: A Case Study of the
Simanjiro and Bariadi Districts, 2008.
145
p.519.
146
Part XI.
147
para 458 A.
148
Act No.5 of 1999; Section 7(1)(e)(iii) of the V.L.A.
149
Definition of “haki ya njia kwa jumuiya”.
150
Act No. 4 of 1999; Section 151.
151
para 458 B.

38
therefore that, blocking the old path makes it imperative for the owner of the field
to ensure the new one is paved and passable.152
Ipanda. This is the path for animals. Such right is recognized under the Village
Land Act, 1999153
and the Land Act, 1999.154
Such path for animals could not be
blocked by one person alone although he owns the field, any change of such path
required the leave of the village Headman and villagers155
Such a matter could be
discussed at a village meeting (Ibilingo lya milimo or long’we) as provided for
under section 53 of the Village Land Act, 1999 and the relevant definition for
“mkutano wa kijiji” being elaborated as consisting every person who is ordinarily
resident in the village and who has attained the apparent age of eighteen years.156
The authority in the case of Kimonge Mwalimu v. Kavuli Ngoma157
may be
borrowed in Usukuma, where obstruction of a cattle path passing across the
respondent’s field was ruled by the High Court of Tanganyika, Hamlyn, J. that:
“…it would be a strong thing for this Court to hold that the whim of a single
person can outweigh the established rights of the community as a whole.”
Although the pattern of land use in Usukuma has relatively not changed, but the
following are notable matters. That villages have established village land councils
per section 60 of the Village Land Act, 1999 which mediate various land disputes
using Sukuma customary law, Village Land Regulations, 2002158
and various
directives and bye-laws issued by the District Council.159
The Village Land Regulations, 2002 allow for adoption of a favoured procedure to
be used depending on the nature, circumstances and needs of the dispute and
disputants and speedy settling of the matter. They also provide for need for
unbiased, equality and justice during mediation also to regard customary law, the
rights and duties of disputants, various laws enacted by the Parliament, cultural
152
para 458 C.
153
Section 7(1)(e)(iii).
154
Section 151.
155
para 459.
156
Section 55 of the Local Government (District Authorities) Act, Cap. 287 [R.E. 2002].
157
158
Made under section 65 of the V.L.A, 1999.
159

39
aspects pertaining to land, articles of the Constitution and the general environment
surrounding the dispute as well as connection to any prior disputes.160
The Village Land Act, 1999 provide for the requirement of the village land council
to act in accordance with any customary principles of mediation and natural justice
in addition to customary principles and any principles and practices which
members could have received training, this is per sub-section (4) of section 61 of
the Village Land Act, 1999.
Kennedy further observes that the main law used in Bariadi is customary law
because, the disputants are more conversant customary law more than any other
law, the disputes themselves involve customs and traditions, other laws are not
well known to members and he further reports that people understood that the
Village Land Regulations were meant for those who will be given or allocated land
by the village council with certificates of customary right of occupancy and not
those in occupation of land under Sukuma customary law.
As to the functioning of the village land council, Kennedy argues, that the elders
decisions are still being employed in ascertaining and deciding disputes or
interpreting certain rules of Sukuma customary law and that they are only
persuasive authorities to the village land council, that although this is the case, it is
very rare scenario for the village land council to differ from elders and even if they
do so, it is only on procedural technicalities, for example equal opportunity to be
heard before the elders council and others.
That the village land council are not popular in Usukuma due to people being
accustomed to tradition, not many disputants like to refer their disputes to them as
they are reluctant to bring matters to court on outset. Other reasons being that, its
meetings take long time to settle disputes (they meet once a week), it is optional
mediation forum with no power to enforce decisions. That therefore disputes are
referred first to mediation by elders (banamhala), neighbours and family members
whose decisions are usually accepted. Therefore they do not wish to go to second
mediation but rather seek judgement of the primary court or the ward tribunal. The
village land council is ignored for having no power to enforce decisions.
160
Regulations 7 & 77 of the Village Land Regulations, 2001.

40
That it has been observed that some members of the village land council are also
members of some other village organs such as the Village Council contrary to sub-
section 5 of section 61 of the Village Land Act, 1999 and therefore undermining
the principle of impartiality.
6.5 The Trend of Land Transactions
It has been observed all over Usukuma that there are so many land transactions in
the form of leases, land sales and mortgages. As what Elias161
observed such a
trend that: “The normal incidents of land ‘borrowing’ and of grants of the usufruct
of land for life or for an indefinite period have also been stated; the transition from
these indigenous methods of transfer of land rights to those of the English system
of leases, though gradual and by no means universal, is comparatively easy-the
traditional payment in kind being merely replaced by payment in cash”162
. In fact a
colonial commentator in 1930’s observed that it was not customary for the Sukuma
to sale types of land other than mbuga or malago. But he witnessed sale and rental
of land belonging to Itongo in southern Maswa.163
According to Kennedy, recent
evidence show that in Bariadi the transactions are based on mutual agreements
between individual parties, they are not done in accordance with the new land laws
and they lack standard and formats. That people without sufficient land for
cultivation and those with excess land, mostly mahame, agree each other to
cultivate fields and pay in money form or in kind in the form of crops, they agree
orally with rare intervention of the village government, although this used to be
allowed customarily.164
Land sales also occur, especially those that want to move out of the village for
various reasons including shortage of grazing land for cattle. They do not surrender
their holdings to the village government for future allocation165
to any needy
person. This position is also contrary to Sukuma customary law.166
That the village
government are not strict on preventing such sales but they are sympathetic with
the outgoing villagers who need money to settle in the new area.167
That when a
161
Elias, op.cit., p.12.
162
Supra, at p.283.
163
Hartley, B.J., ”Land Tenure in Usukuma”, T.N.R., 5(1938) p.22.
164
para 414.
165
166
para 380.
167
Kennedy, op.cit., p.124.

41
holder wishes to sell part of his shamba, he invites the local leader of the
Kitongoji168
and all the neighbours to the land in question.
The types of mortgages in Usukuma occur in terms of customary banking, in that,
there is borrowing of money by promising or pledging a piece of land as security
against default of payment, either until he is able to pay or permanently, the
example of mafogong’o, that is, a thrift traditional savings and credits cooperatives
(SACCOS) under the Cooperative Societies Act, 2003.169
Such agreements are
verbal and written ones are said to be also available, lands involved end up being
sold to repay the loans and that ward executive officers and primary court
magistrates are sometimes invited to witness the transactions. Other securities
includes mere promises, cattle, etc. they are regulated by sub-section 4 of section
31 of the Village Land Act, 1999.
According to Wijsen & Tanner,170
although the customary position as well as
government rulings since German times that land cannot be sold, there has been
population increase on the one hand and on the on the other the planting of cotton
as a cash crop, these has made farming land valuable and sold. They also confirm
that land is leased and buying and selling of land is done in Usukuma without any
legal title recognized in court making the Sukuma manage their affairs
independently of the structures and policies of government.
Again, according to Kennedy, people in Usukuma may obtain land, apart from
either inheritance which is the main source or allocation by the village council, but
by purchase and gift.171
Also that the impact of these transactions is the tendency of
people to continue to acquire, hold and transact in land in accordance with their
living law as they did before, that is, following le droit paralle’le et le droit secret.
This therefore implies non-compliance with the new land laws and entailing a
considerable legal risks to property rights in a pluralistic legal setting, where some
transactions may become void for lack of village council’s approval as required by
168
Rule 5 of the Taratibu za Kufafanua Kazi ya Mwenyekiti wa Kitongoji, 1993; G.N. 4 of 1994.
169
Act No. 20 of 2003.
170
Wijsen, F. & R. Tanner, ‘I Am Just A Sukuma’ Globalization and Identity Construction in North West Tanzania,
2002.
171
Wijsen & Tanner, op.cit., p.125.

42
sub-section 6 of section 30 of the Village Land Act, 1999 also as provided for
under section 129 of the Land Act, 1999.172
6.6 Conclusion
Changes that have been experienced throughout Usukuma on land matters as
explained before have prompted the current attitudes connected with land
ownership. The interplay of scarcity, insecurity of tenure due to demise of
traditional set up, encroachments, scarcity of stock water, environmental changes
and policy make the otherwise better and accurate Sukuma land tenure system
unseen and taken as if it is the problem of customary law as generalized by
antagonists of this branch of land law.
123
As amended by the Land (Amendment) Act, 2004; Act No. 2 of 2004.

43
PART SEVEN:
CONCLUSION
Nowhere does the Constitution of the United Republic of Tanzania, 1977 (the
Constitution) provide for Customary law. Only sub-article 2 to Article 108 of the
Constitution mentions tha:”…, Mahakama Kuu itakuwa na uwezo wa kutekeleza
shughuli yoyote ambayo kwa mujibu wa mila za kisheria zinazotumika Tanzania
shughuli ya aina hiyo kwa kawaida hutekelezwa na Mahakama Kuu.” The customs
referred in the provision have always been said to be application of prerogative
writs habeas corpus, mandamus, certiorari and others. As emphasized the ‘mila za
kisheria’ has nothing to do with customary law, the only trace would be to attribute
the power of appointing magistrates under Article 113 to go and preside over
primary courts. As to written law, the Judicature and Application of Laws Act,
Cap.453 has also always provided, under section 6 that: “Subject to the provisions
of any written law and to the limits of its jurisdiction, a magistrate’s court shall
exercise its jurisdiction in accordance with the laws with which the High Court is
required by this Act to exercise jurisdiction and with such other laws as shall be in
force in Tanganyika….” Section 9 to the said Cap.453 is the exact and only
provision for customary law, though colonial in context, since it was drafted in the
wake of independence, probably none of the drafters ever wished customary law
should have any life.
As far as written laws are concerned, the Land Act, Cap.113 and the Village Land
Act, Cap.114 are the ones that have confirmed the status of customary law, though
the latter with signs of shivering. The future depends much on what will be done to
individual customary laws of tribes, such as this of the Sukuma to make them
available for courts and the general public to use and mould the Tanzanian legal
system. Only some work to write down for each. The political considerations
which were in those by-gone days taken to bring fear for ethnocentrism are over
and everyone can see the need for writing the individual customary public laws.

Sukuma customary law

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