THE OPEN UNIVERSITY OF TANZANIA

FACULTY OF LAW

MAIN ASSIGNMENT QUESTION

NAME: SHIRIMA JUVENAL DONATH

REG NO: PG2022000601

PROGRAMME: L.L.M LAND MANAGEMENT AND ADMINISTRATION

COURSE CODE: OLW 645

COURSE TITLE: REAL ESTATE INVESTMENT LAW

DEPARTMENT: ECONOMIC LAW DEPARMENT

SUPERVISOR: DR. ABDALLAH MRINDOKO ALLY

Email: [email protected]

AN ASSIGNMENT SUBMITED IN PARTIAL FULLFILMENT OF

REQUIREMENTS FOR THE AWARD OF THE MASTERS DEGREE OF
LAWS IN LAND ADMINISTRATION AND MANAGEMENT (LLM-LAM)
OF THE OPEN UNIVERSITY OF TANZANIA

OCTOBER, 2023
Assessing the Impact of Land-Based Investment on Indigenous Land
Rights in Africa.

Key Words: Indigenous land, land grabbing, land based investments,

meaningful consultations/informed consent, land reform and compulsory
land acquisition.

Abstract:
Land-based investments in Africa have become a prominent driver of
economic development and foreign investment in recent decades. However,
these investments have also raised significant concerns regarding their
impact on the land rights of indigenous communities. This essay examines
the multifaceted and complex relationship between land-based investments
and indigenous land rights in Africa, offering detailed examples and
clarifications. It explores the historical context, the legal framework, and
the various socio-economic and environmental impacts of such investments.
Furthermore, it discusses potential solutions and policy recommendations to
address the challenges posed to indigenous land rights in the continent.
1. Introduction

Land is an important resource and a major factor of production and a key

determinant factor of the life of a nation (Kironde, 1997). Land is an
essential natural resource, both for the survival and prosperity of humanity,
and for the maintenance of all terrestrial ecosystems. Over millennia,
people have become progressively more expert in exploiting land resources
for their own ends, and competition for land. Attention should now be
focused on the role of humankind as stewards rather than exploiters,
charged with the responsibility of safeguarding the rights of unborn
generations and of conserving land as the basis of the global ecosystem
(Kauzeni, Kikula, Mohamed, & Lyimo, 1993). 1 (FAO/UNEP, 1996)2

Africa is a continent rich in natural resources, and it has witnessed a surge

in land-based investments, including agriculture, mining, infrastructure
development, and urban expansion, driven by both domestic and foreign
interests. These investments hold the potential for economic growth,
employment creation, and infrastructure development, but they also have
the potential to disrupt the lives and land rights of indigenous communities
that have inhabited these regions for generations (ECOWAS Parliament,
2015).

1
Kauzeni, A. S., Kikula, I. S., Mohamed, S. A., & Lyimo, J. G. (1993). Land Use
Planning and Resource Assessment in Tanzania: A Case Study. IRA Research Paper
No. 35.(3).
2
FAO/UNEP. (1996). Our Land Our Future. A New Approach to Land Use Planning
and Management. Rome: FAO/UNEP.
Land-based investments in Africa have had profound and often detrimental
effects on the land rights of indigenous communities across the continent
(Migot-Adholla, Hazell, Blarel, & Place, 1991). This essay examines the
multifaceted impacts of these investments, drawing on specific cases and
examples to illustrate the challenges faced by indigenous peoples.

The impact of land-based investments on on indigenous land rights in Africa

remains at the centre stage of debate in Africa’s quest to increase
agricultural, mining, industrial and other investments 3. In a continent where
most people depend on land to derive their daily subsistence, it is critical
that legitimate land owners are given a central focus in land-based
investments that include but are not limited to agriculture, livestock
keeping, tourism, and forestry. Evidence shows that existing large-scale
land-based investment in many places in the African countries either
marginalize or exclude small producers, particularly women. Small
producers are often less engaged in designing, implementing and
monitoring land-based investments. Current arrangements on compensation
and benefit-sharing from land investment further marginalize communities
who give up their land for the development of such investments.

Various Cases4 in Tanzania particularly from Ngorongoro, Bulyanhulu,

Kilwa, Bagamoyo, Nyamongo and Kilombero show how different perceptions
among community’s trigger clashes between stakeholders. Clear
information flows among and between stakeholders in land-investment is
important for communities to benefit from large-scale land-based
3
These rights recognize and protect the diverse tenure and production systems upon which
people’s livelihoods depend, including the communal and customary tenure systems of
smallholders, indigenous peoples, pastoralists, fisher folks, and holders of overlapping,
shifting and periodic rights to land and other natural resources, even when these are not
recognized by law, and whilst also acknowledging that the well-being of resource-users
may be affected by changes beyond the boundaries of the land.
4
As studied through the National Engagement Strategy initiative (NES) of the International
Land Coalition and implemented by among others, the Land Based Investment Working
Group coordinated by the Tanzania Natural Resource Forum (TNRF)
investments. In this brief we explore key areas surrounding land-based
investments in Africa, including meaningful community consultation and
participation; land-based compensation approaches; gender implications of
large-scale land-based investments, and the wider policy implications of
various available tools and alternatives.
1.1 Indigenous communities and their lands.
Indigenous land rights refer to the legal and customary rights that
indigenous communities have over their traditional lands. These rights are
based on their historical and cultural connections to the land and are
recognized under international human rights conventions and national laws.
Indigenous land rights are essential for the well-being of indigenous
communities as they provide them with a secure livelihood, cultural
preservation, and self-determination. Indigenous Land Rights: Respecting
and investing in indigenous land rights is crucial as it helps protect the
cultural, spiritual, and historical connection that indigenous communities
have with their ancestral lands. By recognizing and supporting indigenous
land rights, it ensures that these communities have the autonomy and
control over their resources, which empowers them economically and
socially.
Example from Tanzania:
In Tanzania, indigenous land rights are recognized under the country's
constitution and the Village Land Act of 1999. This act gives local
communities, including indigenous communities, rights to land in
accordance with their traditional customs and norms. It allows them to have
control over their territory, use, and management of natural resources
within their land.
2. Historical Context of Indigenous Land Rights in Africa
The historical perspective on indigenous land rights is a complex and often
troubling narrative that spans centuries and continents. The struggle for
land rights among indigenous peoples has been marked by dispossession,
colonization, forced relocations, and a long history of injustices (Migot-
Adholla, Hazell, Blarel, & Place, 1991) 5. This historical perspective provides
context for understanding the challenges faced by indigenous communities
today.
2.1. Pre-colonial Indigenous Land Rights
Before the arrival of European colonial powers in the Americas, Africa, Asia,
and other parts of the world, indigenous peoples inhabited their ancestral
lands and practiced diverse forms of land tenure. These systems were often
communal and based on traditional customary laws and practices. Land was
not typically seen as a commodity to be bought and sold but rather as a
resource to be shared and managed collectively (Moyo, 2017)6.
2.2. European Colonialism and Land Dispossession
The arrival of European colonizers in the Americas, Africa, Asia, and
Oceania had devastating consequences for indigenous land rights.
European powers often claimed land as their own through conquest,
treaties, or legal instruments that were often imposed on indigenous
peoples without their consent (Sanga, 2009)7. During the period of
colonialism, many European powers enacted policies and laws that
disregarded or violated the land rights of indigenous communities (Sanga,
2009). Indigenous lands were often seized and exploited for the benefit of
the colonizers, resulting in dispossession, displacement, and
marginalization (Rwegasira, 2012)8.

5
igot-Adholla, S., Hazell, P., Blarel, B., & Place, F. (1991). Indigenous Land
Rights Systems in Sub-Saharan Africa: A Constraint on Productivity? The
World Bank Economic Review, 5(1), 155-175.
6
Moyo, K. J. (2017). Women Access to Land in Tanzania: The Case of the
Makete District. Doctorial thesis at KTH. Stockholm, Sweden: Kungliga
Tekniska.

7
Sanga, R. T. (2009, March). Assesssing the Impact of Customary Land Rights
Registration on Credit acess by Farmers in Tanzania: A case study in Mbozi district.
Masters Degree Thesis. Enschede, The Netherlands: International Institute for Geo-
Information science and Earth Observation.
8
Rwegasira, A. (2012). Land as a Human Right; A History of Land Law and Practice
in Tanzania. Dar es Salaam: Mkuki na Nyota, Publisher Limited.
Examples of Land Dispossession:
 Colonization of the Africa: European colonizers claimed vast
territories in the Africa, displacing indigenous communities and
seizing their lands. The doctrine of "terra nullius" 9 was often used to
justify land theft, even in regions with well-established indigenous
populations.
 Land Enclosures in Africa: In Africa, colonial powers partitioned the
continent and allocated land to European settlers and corporations,
often at the expense of indigenous communities10. Indigenous peoples
were dispossessed and marginalized, leading to a legacy of
landlessness and inequality.
 Land Acts or Ordinances in Africa: In African countries, both the
British colonizers11, German colonizers12, French colonizers and the
Portuguese colonizers enacted a series of Land Acts or Ordinances in
the 19th and early 20th centuries that forcibly removed indigenous
peoples from their ancestral lands. This led to the dispossession and
displacement of Aboriginal and Torres Strait Islander communities.
2.2.1. Forced Relocations and Reservations
As colonial powers consolidated control over indigenous lands, they
frequently forced indigenous communities to move to designated areas,
reservations, or reserves (Sanga, 2009)13. These relocations disrupted
traditional ways of life and further eroded indigenous land rights.

9
A Latin word meaning; empty land
10
A resolution of the Berlin Conference of 1884/1885.
11
British Colonizers in the then Tanganyika enacted the Land Ordinance of 1923 to
facilitate land alienation in the process of establishing settlers’ estates and plantations.
12
The German East African Colonizers in the then Tanganyika enacted a circular order No.
1 of 1891 that declared the whole Tanganyika land as a crown land (un-occupied land) so
as to facilitate land alienation for the purposes of establishing white people plantations.
13
Sanga, R. T. (2009, March). Assesssing the Impact of Customary Land Rights Registration
on Credit acess by Farmers in Tanzania: A case study in Mbozi district. Masters Degree
Thesis. Enschede, The Netherlands: International Institute for Geo-Information science and
Earth Observation.
Examples of Forced Relocations:
 Apartheid in South Africa: Under apartheid, indigenous communities,
particularly black South Africans, were forcibly relocated to
designated areas known as "homelands" or "Bantustans." These
relocations were part of the apartheid regime's strategy to segregate
and dispossess indigenous communities.
2.2.2. Impact of Colonization on Indigenous Land Rights
European colonial powers, during their rule over Africa, introduced new
systems of land tenure that favored private ownership and commercial
exploitation. Indigenous communities were often dispossessed of their
ancestral lands, which were then allocated to European settlers and
corporations for agriculture, mining, and infrastructure development. This
dispossession led to profound social and economic dislocation among
indigenous populations.
2.3. Post-Colonial period in Africa
In the post-colonial era, many indigenous communities continued to face
threats to their land rights as governments pursued modernization and
development projects (Cotula, 2015)14. In modern times, multinational
corporations involved in industries such as mining, logging, and agriculture
have been implicated in infringing upon indigenous land rights. Some
corporations have been accused of forcibly acquiring indigenous lands,
polluting the environment, and exploiting natural resources without proper
consultation or consent from local communities.
Examples of Modern Development Impact:
 The North Mara Gold Mine, Bulyanhulu Gold Mine, Geita Gold Mine, :
The establishment of the mining cites in various districts in Tanzania
led to the mass displacement of indigenous communities and the
flooding of their ancestral lands (Curtis & Lissu, 2008)15.
14
Cotula, L. (2015). Land rights and investment treaties: Exploring the interface.
IIED Land, Investment and Rights series.
15
Curtis, M., & Lissu, T. (2008). A Golden Opportunity?: How Tanzania is failing to
benefit from gold mining (2 ed.). Dar es Salaam, Tanzania: Christian Council of
 The construction of Kariba and Akasombo dams in Zambia and Ghana
respectively encroached on indigenous lands to the large extent,
leading to deforestation, loss of livelihoods, and conflicts with
indigenous communities and mass displacements of indigenous people
from their ancestors lands (Nuhu, 2012)16.
2.3.1. Post-Independence Land Reforms
After gaining independence, many African nations initiated land reforms
aimed at rectifying historical injustices and restoring land rights to
indigenous communities. However, the success of these reforms has been
mixed, with some countries making significant strides in recognizing and
protecting indigenous land rights, while others continue to grapple with
land tenure challenges.
2.3.2. The Global Indigenous Rights Movement
In response to centuries of dispossession and discrimination, indigenous
peoples around the world have mobilized to assert their rights. The global
indigenous rights movement gained momentum in the 20th century and led
to the development of international legal frameworks and declarations
aimed at protecting indigenous land rights (Cotula, 2015)17.
 United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP)18: Adopted in 2007, UNDRIP is a comprehensive
international framework that recognizes the rights of indigenous
peoples, including their right to self-determination, land, and
resources. It emphasizes the importance of obtaining free, prior, and

Tanzania (CCT), National Council of Muslims of Tanzania (BAKWATA) & Tanzania

Episcopal Conference (TEC).
16
Nuhu, S. A. (2012). Development induced displacement in the African context: What
says the African Union Convention? Journal of Internal Displacement (JID), 2(1), 5-
26.
17
Cotula, L. (2015). Land rights and investment treaties: Exploring the interface. IIED
Land, Investment and Rights series.
18
See articles; 10, 25, 26, 30 and 32 of the United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP), 2007
informed consent (FPIC) from indigenous communities for activities
that affect their lands.
 Landmark Legal Cases: In various countries, indigenous communities
have won significant legal battles to reclaim their lands and assert
their rights. These cases have set important precedents for
recognizing and protecting indigenous land rights within national
legal systems.

Therefore, to understand the current impact of land-based investments

on indigenous land rights in Africa, it is essential to consider the
historical context. Indigenous communities in Africa have traditionally
had their own systems of land governance and resource management.
Land was often held communally, and access to it was governed by
customary law and practices. The colonial period, which saw the
imposition of European land tenure systems, significantly disrupted these
traditional land rights.
3. Legal Framework for Indigenous Land Rights
The legal framework for indigenous land rights in Africa is a complex
patchwork of international, regional, and national laws, treaties, and
customary practices. It is important to note that the legal recognition and
protection of indigenous land rights vary widely across the continent.
3.1. International Legal Instruments
Several international legal instruments provide a basis for the protection of
indigenous land rights in Africa. International legal frameworks exist to
protect the land rights of indigenous peoples. Key instruments include:

The United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP)19, adopted in 2007, recognizes the collective and individual
rights of indigenous peoples, including their right to own, use, and control
their lands, territories, and resources it has also established a

19
ibid
comprehensive framework for safeguarding the land rights of indigenous
communities worldwide. While many African nations have endorsed
UNDRIP, implementation remains a challenge.

International Labour Organization (ILO) Convention No. 169 20: This

convention, ratified by many African countries, outlines the rights of
indigenous and tribal peoples, including land rights and the requirement for
consultation and consent on matters affecting them.
Example: Legal Recognition of Indigenous Land Rights in Kenya in Kenya,
the passage of the 2016 Community Land Act21 was a significant step
towards recognizing the land rights of indigenous communities. The law
requires the establishment of community land registries, strengthening
indigenous land tenure security. However, implementation challenges,
including land disputes and lack of resources, persist.
3.2. Regional Mechanisms
Regional organizations, such as the African Union (AU) and the African
Commission on Human and Peoples' Rights (ACHPR), have also recognized
the importance of indigenous land rights. The African Charter on Human
and Peoples' Rights, for example, includes provisions related to land and
resource rights (ACHPR, 1981)22. However, the enforcement of these
provisions varies across countries.
3.3. National Legal Frameworks
At the national level, African countries have different legal frameworks
governing land rights. Some nations have specific legislation recognizing
and protecting indigenous land rights, while others rely on customary law
and practices. In some cases, there is a lack of clarity and consistency in
legal frameworks, leading to uncertainty and disputes over land ownership
and use.
20
See article 13-19 of the International Labour Organization (ILO) Convention No. 169 of
1989
21
Laws of Kenya: Part II (Sec. 4-14) of the Community Land Act No. 27of 2016
22
Article 14, 21(2), of the African Charter on Human and Peoples' Rights, 1981
4.0 Drivers of Land-Based Investments
Several factors drive land-based investments in Africa, many of which have
negative consequences for indigenous land rights:
Large-scale agricultural investments and Global Food Security: The growing
global demand for food and biofuels has led to increased interest in African
farmland. Investors from both within and outside the continent seek to
acquire large tracts of land for agricultural production (FAO/UNEP, 1997).
Example: In 2008, the South Korean conglomerate Daewoo Logistics leased
1.3 million hectares of land in Madagascar for large-scale rice production.
This deal, which was negotiated without the consent of local communities,
sparked public outrage and ultimately led to its cancellation. Also, Tanzania
has attracted significant investments in large-scale agricultural projects,
such as the Kilombero Sugar Company and the Rufiji Basin Development
Authority. These projects have resulted in the displacement of indigenous
communities, loss of livelihoods, and degradation of natural resources. In
some cases, indigenous communities have been forced to relocate to make
way for these investments.
Mining investments and Resource Extraction: Africa is rich in mineral
resources, and foreign companies often enter into agreements with
governments to exploit these resources, leading to land dispossession and
environmental degradation. Like in other African countries, Tanzania is rich
in mineral resources, and mining investments have had a significant impact
on indigenous land rights. This includes the dispossession of indigenous
communities from their ancestral lands, destruction of sacred sites, and
pollution of water sources. The government has often prioritized mining
investments over the rights of indigenous communities. Example, in the
Niger Delta region of Nigeria, oil extraction by multinational corporations
has resulted in land pollution, loss of livelihoods, and displacement of
indigenous communities (Couillard, Gilbert, Kenrick, & Kidd, 2009)23.
23
Couillard, V., Gilbert, J., Kenrick, J., & Kidd, C. (2009). Land Rights and the
Forest Peoples of Africa: Historical, Legal and Anthropological Perspectives:
Overview: analysis & context. Stratford: Fosseway Business Centre,
Wildlife Conservation and Tourism Investments: Land-based investments
can play a crucial role in wildlife conservation by establishing protected
areas, promoting sustainable practices, and supporting anti-poaching
efforts. These investments can also contribute to tourism development,
attracting visitors interested in experiencing the unique biodiversity and
cultural heritage of the area. Tanzania is known for its rich biodiversity and
attracts significant investments in wildlife conservation and tourism.
However, these investments have often resulted in the eviction of
indigenous communities from their traditional lands, restriction of access to
natural resources, and violation of their cultural rights.

Example: The Maasai Mara National Reserve in Kenya is renowned for its
wildlife conservation efforts and tourism potential. Investments in eco-
lodges, sustainable tourism practices, and community-based conservation
initiatives have helped protect the ecosystem, conserve wildlife, and
generate revenue through tourism.

Infrastructure Development Projects: Land-based investments often require

the development of infrastructure such as roads, ports, and energy
facilities. These infrastructure projects can improve connectivity, facilitate
trade, and promote economic growth within the region (Hyandye C. et Al.,
2015). The government of Tanzania has implemented various infrastructure
development projects, such as roads, dams, and power plants. These
projects have often required the acquisition of indigenous lands, leading to
the displacement of communities and the loss of their traditional territories.

Example: The Lamu Port-South Sudan-Ethiopia Transport (LAPSSET)

corridor project in East Africa involves the construction of a major transport
route. Indigenous communities in Kenya, such as the Sengwer and Pokot,
have faced forced evictions and loss of land as a result of this project.

Stratford Road.
Urbanization: Rapid urbanization in Africa has led to land grabs for real
estate development, displacing indigenous communities who lived in or near
urban areas.
Example: In Nairobi, Kenya, the Maasai community has faced eviction from
their ancestral lands to make way for urban expansion.
5. Socio-Economic Impacts on Indigenous Communities
Land-based investments in Africa can have profound socio-economic
impacts on indigenous communities, both positive and negative (Gilbert,
2017). It is essential to examine these impacts in greater detail to
understand the dynamics at play.
5.1. Positive Impacts
 Income Generation: In some cases, land-based investments have
provided opportunities for indigenous communities to generate
income through wage labor, contract farming, or revenue-sharing
agreements with investors (Shimwela, 2018).
 Infrastructure Development: Investments in infrastructure, such as
roads and irrigation systems, can improve accessibility to remote
indigenous areas, enhancing economic opportunities and living
conditions.

5.2. Negative Impacts

 Displacement and Eviction: Perhaps the most significant negative
impact is the displacement of indigenous communities from their
ancestral lands. Large-scale agricultural projects, mining operations,
and urban expansion often result in forced evictions, disrupting
traditional ways of life (Gilbert, 2017).
 Loss of Livelihoods: Indigenous communities often rely on their land
for subsistence agriculture, hunting, gathering, and pastoralism. Land
investments can lead to the loss of these livelihoods, contributing to
poverty and food insecurity.
6. Environmental Impacts
The environmental impact of land-based investments on indigenous lands is
a critical aspect of this discussion. Environmental degradation not only
threatens the livelihoods of indigenous communities but also has broader
implications for ecosystems and biodiversity.
6.1. Deforestation and Biodiversity Loss
In many cases, land-based investments in agriculture and logging
contribute to deforestation, which has severe consequences for biodiversity
and carbon storage. Indigenous forests are often rich in biodiversity and
serve as crucial carbon sinks, making their protection essential for global
environmental goals (Kauzeni, Kikula, Mohamed, & Lyimo, 1993).
6.2. Resource Extraction and Pollution
Mining and extractive industries can lead to pollution of land and water
resources. Indigenous communities are often directly affected by the
pollution resulting from these activities, with adverse health impacts and
the loss of access to clean water and fertile land.
6.3. Environmental Degradation: Environmental degradation refers to the
deterioration of the natural environment due to human activities. It can
include deforestation, pollution, habitat destruction, and overexploitation of
natural resources (Shimwela, 2018). Land investments, particularly in
resource extraction sectors like mining and logging, can result in
environmental degradation, negatively affecting indigenous lands and
resources. Pollution, deforestation, and soil degradation harm ecosystems
and disrupt traditional indigenous knowledge of sustainable resource
management. An environmental declaration is a formal statement or
proclamation that recognizes and addresses environmental concerns. For
example, an environmental declaration could be a government's
commitment to protect a specific area of indigenous land from industrial
activities to preserve its ecosystem, biodiversity, and cultural significance.

7. Legal Vulnerability and Discrimination

Indigenous communities in Africa often face legal vulnerabilities and
discrimination when dealing with land-based investments. Their lack of
access to legal representation and understanding of complex legal
processes can lead to exploitation.
7.1. Land Grabbing and Lack of Consent
In many instances, land investments occur without the free, prior, and
informed consent of indigenous communities, as required by international
standards. This lack of consent can result in land grabbing, where investors
collude with governments to secure land deals to the detriment of
indigenous rights (Prof. Kasimbazi, 2017)24. In many disputed scenarios,
local people are not involved in decision-making process and commercial
investments on land are not beneficial to majority of community members.
Land grabbing under commercial investment has left painful experience
among many villagers including irreversible customary land rights loss after
falling blindly into legal contracts with inventors (Gilbert, 2017). Women
and children are immediate victims of land grabbing consequences.
In most cases, non-village investors are the ones owning larger part of the
land-based investments within the districts, which is likely to deny the right
of the local people to enjoy their lands benefits. Agricultural activities
support the livelihoods of the local people in a great deal, yet households
own increasingly small farm plots, indicating future handicapped household
livelihoods.
7.1.2. Land Grabbing in Tanzania.
Land grabbing in Tanzania has no sign of slowing down, it will continue or
probably increase due to current liberalized and capitalist-oriented
economic policies (Hyandye C. et Al., 2015)25. There is much dissatisfaction

24
Prof. Kasimbazi, E. (2017). Land Tenure and Rights: for Improved Land
Management and Sustainable Development. Global Land Outlook, Working
Paper (pp. 20-21). United Nations Convention to Combat Desertation.
25
Hyandye C. et Al. (2015). Commercial Investments Impacts on Customary Land Rights
and Community Livelihoods: Reflection of D-by-D Reforms in Kisarawe District. Rural
Planing Journal, 17(1).
among villagers resulting from land grabbing by investors in various areas.
They range from low land compensation by inventors to controversial
contracts, lack of rapid response by district council to their complaints
related to land contracts, unfulfilled expectation of jobs, poor
infrastructures and low income.
Village Land Act (1999) and policy has not been able to defend village and
customary land rights. Village Land Act of 1999 is not enforceable as long
as Land Act (1999) and TIC Act (2007) are operational. Although most of
village decisions related to land are made during the village assembly, they
all fall in the trap of losing their customary land rights. They make decisions
blindly without proper negations and lack of the necessary knowledge and
envisioning of future needs and implications. If Tanzania is committed to
improving economic status of its rural communities, land tenure system
should be improved and land rights to be made secure. Tanzania
government should find a right model for large commercial investment
which will yield a win-win situation to both inventors and villagers without
restricting land access rights to villagers or permanent transfer land rights
to investors. Such models would be contractual farming, and shareholding
in the commercial investments by villagers.
7.2. Access to Justice
Access to justice for indigenous communities is often limited. They may lack
the resources and knowledge to navigate the legal system effectively, and
they may face systemic biases against their claims to land and resources.
7.3. Human Rights Abuse: Human rights abuse refers to violations of basic
human rights, such as freedom, dignity, equality, and security. These
abuses can include actions that infringe upon an individual's civil, political,
economic, social, and cultural rights. A clear example of human rights abuse
is forced evictions and displacement of indigenous communities from their
ancestral lands without their free, prior, and informed consent, which is a
violation of their right to land, livelihood, and self-determination. Human
Rights indigenous land rights helps prevent human rights abuses against
indigenous communities. Land-based investments should prioritize
obtaining the Free, Prior, and Informed Consent (FPIC) of indigenous
communities. This ensures that their rights are respected, their lands are
not exploited without their consent, and they are not subjected to any form
of abuse or discrimination.

7.4. Legal Uncertainty: Legal uncertainty refers to a lack of clarity or

ambiguity in laws, regulations, or property rights, leading to confusion and
challenges in the interpretation and application of legal frameworks. This
can pose significant challenges for land tenure and indigenous land rights.
For instance, if there are conflicting or contradictory laws governing
indigenous land rights, it can create legal uncertainty, making it difficult for
indigenous communities to enforce their rights and defend their land
(Rwegasira, 2012).

7.5. Weak Enforcement: Weak enforcement refers to the ineffective

implementation and enforcement of laws, rules, or regulations. It occurs
when there is a lack of resources, capacity, or political will to enforce the
provisions and protect the rights of individuals or communities adequately.
Weak enforcement can lead to human rights abuses, environmental
degradation, and limited accountability. For instance, weak enforcement of
regulations regarding illegal logging or mining can result in the destruction
of indigenous lands without consequences for those responsible.

8. Social Conflicts
Land-based investments can trigger social conflicts within and between
indigenous communities and other stakeholders. Competition for resources
and benefits from land deals can lead to tensions, violence, and even
conflict. These conflicts can have long-lasting and detrimental effects on
social cohesion and stability.
8.1. Cultural Erosion: Cultural erosion refers to the gradual loss or erosion
of traditional cultural practices, beliefs, and values within a community.
This can happen due to various factors, such as globalization, urbanization,
or the displacement of indigenous communities. Indigenous communities
have rich cultural traditions, languages, and spiritual connections to their
land (Nuhu, 2012). Land investments can lead to cultural erosion as
indigenous people are separated from their traditional territories and lose
access to the resources that sustain their cultural practices. For example,
the adoption of Western lifestyles and values may lead to the erosion of
traditional cultural practices among indigenous groups, resulting in the loss
of cultural diversity and heritage.

8.2. Lack of meaningful consultation and participation: Community

consultation and participation in large-scale land-based investments needs
to consider existing power imbalances between different parties and ensure
active, free, effective, meaningful and informed participation of individuals
and groups in associated decision-making processes (Gilbert, 2017).
Community consultation and participation in decision making for matters
affecting their rights including those related to property is both a
constitutional and statutory requirement in Tanzania. Indigenous
communities in Tanzania often lack meaningful consultation and
participation in decision-making processes related to land investments. This
has led to the marginalization of indigenous voices and the violation of their
rights.: Indigenous communities in Tanzania often lack meaningful
consultation and participation in decision-making processes related to land
investments. This has led to the marginalization of indigenous voices and
the violation of their rights.

However, experiences from Ngorongoro, Tarime and Kilwa districts among

others show that communities are not meaningfully engaged to effectively
participate in the entire investment life cycle and, therefore, stand at the
receiving end of the process.
Their failure to obtain redress in the face of unsuccessful large-scale
investment is largely due to their inadequate consultation, participation and
inclusion in the company’s proposal land acquisition, business plan and
investment model.

9. Economic Disparities
Land-based investments can exacerbate economic disparities between
indigenous communities and non-indigenous populations. The benefits of
land deals often accrue to outside investors and governments, rather than
the affected indigenous communities. This economic imbalance can
perpetuate poverty and inequality.
10. Case Studies from other African Countries
To illustrate the impact of land-based investments on indigenous land rights
in Africa, let's examine specific case studies:
10.1. Ogoniland, Nigeria
The Ogoni people in Nigeria have faced significant challenges due to oil
extraction in their lands. Decades of oil spills and environmental
degradation have harmed their traditional livelihoods, leading to poverty
and health issues. The Ogoni struggle for environmental justice and land
rights, symbolized by figures like Ken Saro-Wiwa, highlights the tension
between resource extraction and indigenous land rights.
10.2. Agribusiness in Ethiopia
Large-scale commercial agriculture projects in Ethiopia have led to the
displacement of indigenous communities in the Gambella region. These
communities, such as the Anuak, have lost their ancestral lands and
livelihoods to foreign investors. The government's involvement in land
leasing to foreign companies without adequate compensation and
consultation has been a major issue.
10.3. Land Grabbing in Sudan
Sudan has seen extensive land grabbing, often involving foreign investors
acquiring vast tracts of land for agriculture. Indigenous communities in
Sudan, like the Nuba and Beja, have faced displacement and conflict as a
result of these land deals. The lack of transparency and consultation has
been a recurring problem.

11. Policy Recommendations and Solutions

Addressing the challenges posed to indigenous land rights in Africa requires
a multifaceted approach involving governments, civil society, and the
international community. Here are some policy recommendations and
solutions:
11.1. Legal Reforms
 Strengthen and clarify national legal frameworks for indigenous land
rights, ensuring alignment with international standards such as
UNDRIP.
 Promote the formal recognition of customary land rights, allowing
indigenous communities to have secure land tenure.
11.2. Free, Prior, and Informed Consent (FPIC)
 Enforce the principle of Free, Prior, and Informed Consent (FPIC): in
all land-based investments, requiring investors to obtain the consent
of affected indigenous communities before proceeding with projects.
Investors can engage in a meaningful consultation process with
indigenous communities before any land acquisition or development
takes place. This ensures that the communities are fully informed
about the project and have given their consent freely, without
coercion.
11.3. Land Redistribution and Compensation
 Implement land redistribution policies to rectify historical injustices
and return land to indigenous communities when feasible (Cotula,
2015).
 Ensure fair and equitable compensation for indigenous communities
affected by land investments, including revenue-sharing mechanisms.
11.4. Environmental Protections
 Enforce strict environmental regulations and monitoring of land-based
investments to mitigate environmental degradation and protect
biodiversity.
 Promote sustainable land use practices that respect indigenous
knowledge and traditions.
11.5. Capacity Building and Access to Justice
 Provide legal education and capacity-building support to indigenous
communities to empower them in land negotiations and legal
processes.
 Establish accessible mechanisms for resolving land disputes and
ensuring indigenous communities have access to justice.
11.6. Inclusive Decision-Making
 Include indigenous representatives in decision-making processes
related to land investments and resource management.
 Promote dialogue and conflict resolution mechanisms involving all
stakeholders to prevent social conflicts.
11.7. Land titling and recognition:
Investors can support efforts to secure legal rights for indigenous
communities over their traditional lands. This includes assisting with
land titling processes and advocating for recognition of indigenous
land rights at the national level.
11.8. Benefit-sharing agreements:
Investors can negotiate fair and equitable benefit-sharing agreements
with indigenous communities. These agreements can ensure that
communities receive a fair share of the benefits generated from land
investments, such as employment opportunities, revenue sharing, and
infrastructure development.
11.9. Sustainable land management:
Investors can promote sustainable land management practices that
respect indigenous knowledge and traditional land-use systems. This
includes avoiding environmentally harmful practices and supporting
sustainable agriculture, forestry, and other land-based livelihoods.
11.10. Non-governmental organizations (NGOs): Various NGOs around
the world work to support indigenous land rights by partnering with
indigenous communities, providing legal assistance, conducting
research, advocating for policy changes, and facilitating sustainable
land management practices (Cotula, 2015).
11.11. International organizations: Organizations like the United
Nations (UN) and its specialized agencies such as the United Nations
Permanent Forum on Indigenous Issues (UNPFII) and the
International Labor Organization (ILO) have developed frameworks
and initiatives to support indigenous land rights. The UN Declaration
on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, is a
crucial instrument that recognizes and protects indigenous rights,
including land rights.
11.12. Indigenous rights organizations: Numerous organizations have
been established globally to advocate for indigenous land rights and
provide legal assistance to indigenous communities. These institutions
work to raise awareness, promote legal reforms, and protect
indigenous territories from encroachment.

12. Conclusion
The impact of land-based investments on indigenous land rights in Africa is
a complex and multifaceted issue with far-reaching consequences. While
some investments can contribute to economic development and
infrastructure, they often come at the expense of indigenous communities'
land, livelihoods, and cultures. Addressing this challenge requires a
commitment to legal reforms, environmental protection, inclusive decision-
making, and respect for the rights and traditions of indigenous peoples.
Indigenous land rights are not just a matter of legal recognition; they are a
fundamental human right and a crucial aspect of sustainable development.
Africa's future prosperity depends on finding a balance between economic
growth and the protection of the land rights and well-being of its indigenous
communities. Through concerted efforts at the local, national, and
international levels, it is possible to ensure that land-based investments in
Africa respect and uphold the rights of indigenous peoples and contribute to
shared prosperity and sustainable development for all.

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