Commonwealth and International Law Document

Lekengere Faru Parutu Kamunyu & Ors v Minister of Tourism, Natural Resources and Environment & Ors

The Wildlife Conservation Act, 1974 (the 1974 Act) grants rights of residence in game reserves to people ordinarily resident in the area, and to those with a government permit (s 7). The Act also recognises the discretionary right to graze cattle (s 12). The appellants were 53 Maasai pastoralists who were forcefully evicted from the land by the respondents after their residence and grazing permits in the Mkomazi Game Reserve were revoked. Individually, and on behalf of the Maasai community, the appellants sought a declaration that the Maasai community had ancestral customary title to the whole land comprising the Game Reserve, claiming that such title constituted a deemed right of occupancy under the Land Ordinance, Cap 113 which could only be terminated in accordance with the Land Acquisition Act, 1967 (the 1967 Act). They also sought compensation for loss and injury to their possessions suffered during the evictions. The respondents argued that the appellants’ only claim to title, the right to reside and use the reserve for grazing, had been lawfully revoked when reasonable notice had been given of the government’s intention to have all pastoralists vacate the reserve in 1988. The High Court found that the Maasai community had limited title to some of the land in the reserve and, restricting its judgment to those appellants who had testified at trial, granted a declaration that they were entitled to alternative land on a self-help basis, and compensation. The appellants appealed, inter alia seeking restitution and re-asserting their claim to title over all the land.

In upholding the appeal in part, it was held that:

1. The appellants have no locus standi to start proceedings on behalf of the Maasai community. Claims for the enforcement of communal rights can only be advanced in a class or representative suit. 
2. The High Court erred in restricting its judgment to those appellants who gave evidence at the trial. It was obliged to consider the claims of each appellant, whether or not they testified before the court. 
3. The Maasai do not have customary title over any of the land in the reserve. Their presence in the area at the time the reserve was established in 1951 was minimal and the evidence shows other tribes preceded them. The High Court’s finding that the Maasai had limited title over some of the land is set aside. The Maasai only had statutory title carved out of the public land, and this applied only to those ordinarily resident there at the time the Game Reserve was established. 
4. Since all land is vested in the President on trust for the benefit of the indigenous population under s 4 of the Ordinance, the nature of title available to persons or groups of persons cannot be anything but a right to use public land. It follows, therefore, that the appellants were using the reserve as beneficiaries of public land, subject to legal regulations made for proper land use, namely the 1974 Act. 
5. Pastoralists lawfully in Mkomazi are (a) those ordinarily resident in 1951 and their descendants and (b) those subsequently permitted to reside there. Those in the first category could only be evicted under the Act or another law providing appropriate compensation. For those in the second category their stay could be revoked on reasonable notice. 
6. The evidence shows that only 27 appellants can be deemed to be ordinarily resident in the reserve under the 1974 Act. Since the remaining appellants did not prove that they were living in the reserve when it was established in 1951 their claims should have been dismissed by the High Court. 
7. Under s 24(2) of the Constitution, the lawful eviction of ordinary residents must be in accordance with a law providing for appropriate compensation. Since no compensation was paid by the respondents under the governing legislation, namely the 1967 Act, the eviction of the 27 appellants was unlawful (Attorney General v Lohay Akoonay & Anor (Tanzania Court of Appeal, Civil Appeal No 31 of 1994, unreported) considered). 
8. Each appellant who is deemed ordinarily resident shall be offered alternative grazing land (not on a self-help basis) of comparatively the same standard as that used by other pastoralists, within six months of the date of this judgment and compensation of Shs. 300,000 (Shs. 300,000 was equivalent to approximately US$436  (as at 29 March 1999)). The appellants’ claim to restitution is not appropriate given that they no longer have permission from the government to graze cattle in the reserve and they cannot reside without their cattle.