INTRODUCTION

Right to own property under the constitution of united republic of Tanzania of 1977 which
amended time to time under article 24 it provided that every person is entitles to own property
and has righty to protection of his property according to the law 1. As well as in the Universal
Declaration of Human Rights Article 17(1) it provides that every person has the right to own
property as well as in association with other 2. Therefore, ownership of any of movable and
immovable property comes under the property rights, and those rights property are the rights to
own, acquire (through purchase, through gift, through inheritance), manage, enjoy, and dispose
of tangible and intangible property, which include land, house, money, banking account and
other assets, livestock and crops.3

The following are the negative applicability of rights to own property

1.0 Discrimination on ownership of land under Customary law

Person to the society they cannot enjoy their rights of own property when we talking on
acquisition of land on customary (a person who acquire land by way of allocation by chief of
clan, person who acquire land by way o inheritance of some elder, a person who acquire land by
way of purchase,) sometimes they’re not enjoy their right of own their property and this was
discussed to the case of attorney general v lohay akonaay and joseph lohay4, in this case the
respondent were aggrieved by the action of disposition of their land which was own under
customary ways as they didn’t get compensation as during that time the land ordinance didn’t
cover customary right for people under customary law on owning land and it violated the
provision of the Constitution of the United Republic of Tanzania(1977) under Article 24 on the
right to own property.

1.1 Women’s property rights: The Tanzanian context

The property rights system in Tanzania comprises two components, customary and statutory
tenure. Access and other rights to land therefore fall within one of these two tenures. Statutory
tenure is the main system in urban areas, while in peri-urban and rural areas, customary tenure is
predominant. The majority of rural Tanzanian women are under customary land tenure and
1
The constitution of united republic of Tanzania of 1977 which amended time to time
2
Universal declaration of human rights (1948)
3
See James R.W and F.M kasaan (eds) law and its administration in one party state, Dar es Salaam east Africa
literature bureau, 1973 at p 49.
4
(1995) TLR 80

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dependent on the land. Over 80 percent of all this was discussed in the case Ephraim v. Holaria
Pastor and Another5

In this case a woman, Holaria Pastory had inherited some clan land from her father by a valid
Will. Finding that she was getting old and senile and had no one to take care of her, she decided
to sell the clan land to one GervazKaizilege, a stranger and non-member of her clan. One
Bernardo Ephrahim, a member of the clan filed a suit in the Primary Court at Kashasha, Muleba
District, praying for a declaration that the sale of the clan land was void under the Haya
Customary law - for females have no power to sell clan land. This was in accordance with the
Haya Customary Law (Declaration) (No. 4) Order of 1963; specifically, with its paragraph 20,
which was to the effect that "women can inherit and acquire usufruct right but may not sell." The
Primary Court granted the prayer. She appealed to the District Court at Muleba. Here the
decision of the Primary Court was quashed on the basis of the Bill of Rights in the Constitution
which guaranteed equality for both men and women. Bernardo Ephrahim was not satisfied and
appealed to the High Court of Tanzania at Mwanza. At the High Court, the decision of the district
Court was upheld on the ground that the relevant Haya Customary Law was discriminatory on
the basis of gender, thus inconsistent with Article 13 (4) of the Constitution but also the right of
owning property as per Article 24 of the Constitution. It was held to the court by Mwalusanya, J.

2.0 Misuse of private property

Under this part the public itself misuses the right of enjoying the right of owning private property
as this led to some criminal matters to be conducted or done for example possession of property
or goods which can hinder the safety of the community is a negative application of this right to
own property as a person can own a firearm in Tanzania as per the Firearm and ammunition
Act6but such person can still use the firearm to conduct a criminal offence against the penal code
as he or she will have possession of that gun or rifle. Or the individual with a land can use the
land to cultivate narcotic plants which are prohibited by the law.

3.0 Variations in rights of occupancy to land as a property in Tanzania.

In Tanzania there rights of occupancy where there are deemed right of occupancy and granted
right of occupancy but this rights of occupancy seem of same status but they are not of the same
incidents as the granted right of occupancy can override the deemed right of occupancy where
5
(2001) AHRLR 236
6
Firearm and ammunition Act No. 2 of 2015

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its required necessary for such measure this violated the concept of the persons right to own
property as his property its treated of lesser merit than the other this is provided under Section
34(3) of the Land Act7 where a person owning land under customary rights can be vacated or
compensated to the extent required so as a granted right of occupancy is granted to another
person
This is the negative applicability of this right to own property as it disturbs the enjoyment of a
constitutional right of a person to own property as per Article 24 of the Constitution8

3.1. Compulsory Acquisition of land

In Tanzania the land is under the President as a trustee of the land over the United Republic of
Tanzania as per the Land Policy of Tanzania and the Land Act, where now the Land acquisition
grants power to the President to acquire land under any person for public interest as per Section 3
of the Act9 where now under this provision it shows that the right of a person ownership over
property can be overridden even though the person can be vacated or compensated this options
are not mandatory as there restrictions for the government to impose such reliefs to the occupier
like for example a vacant ground can not be compensated and a person property is taken from
him or her as per Section 12(1) of the Land Acquisition Act10

CONCLUSION
This assignment as covered on the aspect of the negative application of the right to own property
as it shows on matters that shows how this right is not been upheld as how the Constitution of the
United Republic of Tanzania (1977) provides under the bill of right but such right can be
hindered by self-individuals practicing such constitutional right in a negative manner as a person
has the right to own property but such right should not be misused nor should not be violated as
all forms lie under negative application of such right.

7
CAP 13 R: E 2019
8
The constitution of united republic of Tanzania of 1977 as amended time to time
9
CAP 118 R: E 2019
10
Ibid

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