November, 2001
By Eugene Mniwasa and Vincent Shauri
Decentralization is commonly viewed as the transfer of legal and political authority from the central government and its agencies to the field organizations and institutions. This review analyzes the process, institutional and legal framework within which the environmental and natural resources management operates in Tanzania. It specifically focuses on the decentralization within central and local governments' role in environmental management. The focus of the study is to examine how the interface between the centre and local loci of power have affected pieces of legislation relating to management of the environment by central and local governments in Tanzania.
The Lawyers' Environmental Action Team is the first public interest environmental law organization in Tanzania. It was established in 1994 and formally registered in 1995 under the Societies Ordinance. Its mission is to ensure sound natural resource management and environmental protection in Tanzania. It is also involved in issues related to the establishment of an enabling policy environment for civil society, including civil liberties and human rights. LEAT carries out policy research, advocacy, and selected public interest litigation. Its membership largely includes lawyers concerned with environmental management and democratic governance in Tanzania.
| CCM | Chama Cha Mapinduzi |
| DDC | District Development Council |
| FBD | Forestry and Bees Division |
| GOT | Government of Tanzania |
| GCA | Game Controlled Areas |
| GR | Game Reserve |
| LEAT | Lawyers' Environmental Action Team |
| NCCA | Ngorongoro Conservation Area |
| NEP | National Environmental Policy |
| NFP | National Forestry Policy |
| NGO | Non-Governmental Organisation |
| PMO | Prime Minister's Office |
| TANAPA | Tanzania National Parks |
| TANU | Tanganyika African National Union |
| TSHS | Tanzanian Shillings |
| URT | United Republic of Tanzania |
| USD | United States Dollar |
| WDC | Ward Development Committee |
| WDC | Ward Development Council |
| WMA | Wildlife Management Area |
Scholars have conceptualized decentralization but the leading paradigm in the decentralization discourse looks at the concept within an administrative and political context. Although perceptions of decentralization vary, it is commonly viewed as the transfer of legal and political authority from the central government and its agencies to the field organizations and institutions. Therefore, this transfer should include the authority to plan, make decisions and manage public affairs by agencies other than the central government [Ng'ethe (1998:5)].
This review analyzes the process, institutional and legal framework within which the environmental and natural resources management operates in Tanzania. It specifically focuses on the decentralization within central and local governments' role in environmental management. The focus of the study is to examine how the interface between the centre and local loci of power have affected pieces of legislation relating to management of the environment by central and local governments in Tanzania.
The rationale for the quest of a decentralized environmental management framework in Tanzania, revolves around the view that failure of the state in the management of the environment is attributed to the concentration of decision making powers and ownership of natural resources by the central government. The failures of the top-down approach to environmental management can no longer, alone fulfill the ideal management of the environment.
For the purposes of this study, "decentralization" refers to how the state structure allows sharing of power between the centre and the sub-national units of the state and other organizations within society. Broadly defined , decentralization constitutes de-concentration, delegation, devolution and privatization. [Makara]
De-concentration is the shifting of the management workload from centrally located officials to offices outside the national capital or headquarters. In this case, final authority is retained in the centre. Delegation on the other hand, refers to the transfer of power and responsibility of specifically defined functions to organizations that are outside regular bureaucratic structures and are indirectly controlled by the central government. Ultimate responsibility therefore, remains with the government authority.
Devolution is the process where the central government consciously creates or strengthens the structures of the sub-national units of government, thereby, lessening the direct control of the central government. Local units of government make autonomous and independent decisions that are separate from the central government. Privatization is not an independent method of decentralization but implies divestiture while decentralization entails some form of government involvement; however thinly. [Makara]
It is widely admitted that decentralized structures facilitate genuine democratic participation, empower grassroots and channel their input constructively into national development efforts [Mukandala: 1995]. The World Bank Report (1989:81) recognized the importance of decentralization in Sub-Saharan Africa and categorized the objectives of a decentralization programme as:
This report assesses whether the current decentralization processes in Tanzania will ensure better management of the environment and natural resources, which the majority of Tanzanians are dependent upon for their livelihood.
Tanzania covers an area of 945,000km2 and is one of Africa's most ecologically rich countries. The diverse climatic and physical conditions range from arid, semi-arid, and mountainous areas of afro-alpine vegetation, woodland and dry land savanna. About 40% of Tanzania is covered by forests and woodlands, which host various types of ecosystems. Tanzania's eastern coastline extends about 240km north to south along the Indian Ocean. Additionally, there are several lakes, rivers and swamps, which contain diverse types of aquatic life.
Presently, the best agricultural lands in the country are densely populated which in turn results into its degradation, making the soil unfit for cultivation. Deforestation, which is taking place at an alarming rate, has augmented the magnitude of desertification and adversely affected soil fertility, water catchment areas and water flow. Discharge of untreated effluent continues to pollute the ocean, lakes and rivers, thus making water unfit for human consumption and destroying the aquatic habitats.
The National Environmental Policy identifies six (6) major problems, which require urgent attention. These are: 1) loss of wildlife habitats and biodiversity; 2) deforestation; 3) land degradation; 4) deterioration of aquatic systems; 5) lack of accessible, good quality water; and 6) environmental pollution. Further, the Government of Tanzania (GOT) admits, in this policy, that the country needs to adopt environmentally sustainable natural resource management practices in order to ensure that long term sustainable economic growth is achieved (NEP: 1997). It can therefore be concluded that, the country's long-term economic growth is dependent among other factors, upon its coherent natural resource management.
Accordingly, the GOT has formulated a number of policies, enacted pieces of legislation- principal and subsidiary and established various institutions to facilitate and carry out its duty to protect and manage the country's environment. Local government authorities are to protect and manage the environment in their respective areas of jurisdiction. Institutions falling under the rubric of "local government authorities" include: village councils, district councils, township and municipal authorities. These were established through the process of decentralization. This process of decentralization has taken place in different phases.
Based on the reviews of available literature, pieces of legislation and interviews of local government officials and other stakeholders, this report will assess the status of the decentralized institutions.
Objectives of this report can be summarized into the following heads:
Human impacts on deforestation, soil erosion, overgrazing, and degradation of water resources and loss of biodiversity have all resulted into land degradation. Poor agricultural practices such as shifting cultivation, lack of crop rotation practices, lack of agricultural technology and land husbandry techniques exacerbate the problem.
Liviga (1999), contends that the effects of overstocking, which are localized, give rise to serious degradation in places such as Shinyanga and Mbulu where livestock units have exceeded the carrying capacity. This situation is seen as a good indicator of each of capacity for the decentralized institutions at the local level to enforce laws and instruments which are meant to ensure sound environmental management.
Pollution is a major problem in urban areas of Tanzania. Improper treatment and disposal of solid and liquid wastes are the major contributors to urban area pollution. The combined results of these problems are that both air and water have been contaminated with pollutants, which are detrimental to human health. In Dar es Salaam, for example, less than 5% of the population is connected to a sewage system. Where a sewage system exists, raw sewage is discharged directly into the Indian Ocean without prior treatment. Thus a workable water supply and sewage treatment is needed for the urban areas.
Agriculture and rangeland resources are the backbone of Tanzania's economy. It is estimated that about 55% of the land could be used for agriculture and over 51% for pastoral lands. However, only about six percent of the agricultural land is cultivated with the practice of shifting cultivation which causes deforestation and land degradation on the pastoral land. Lake Manyara basin, Geita Gold Mines, Usangu Wetlands and Ngorongoro Conservation areas have been affected the most by inadequate control and land management.
The main cause for these problems is due to lack of proper instruments of enforcement of the existing legislation, policy and by-laws by local authorities. Again where the mandates of central and local institutions on environmental management are weak, conflicting and confusing; enforcement of laws and implementation plans becomes difficult if not impossible.
Forest resources provide both direct products and by -products. The forest reserves are also linked with agriculture, beekeeping, energy, water uses and biodiversity. It is estimated that fuel wood and agricultural residues account for 92% of the total energy consumption in the country. As a result, the mismanagement of fuel resources significantly contributes to deforestation and environmental degradation. Hence, highlighting the central and local governmental institutions inability o solve the problem.
Tanzania is one of the few countries with vast number of wildlife resources. For example, Tanzania's "protected areas" cover about 25% of the total land (Nshala: 1999). The protected land is comprised of national parks, game reserves, game controlled areas and the Ngorongoro Conservation Area.
Unfortunately, communities living around these protected areas do not benefit from the wildlife industry. They live in uncertain conditions visited by persistent attacks by the wild animals and destruction of their crops. This has resulted in an antagonistic relationship between the wildlife authorities and the local populace. Local communities resort to activities like poaching to gain access to and benefits from the wildlife and other natural resources. This is a direct result of the central government excluding local communities from wildlife management.
With respect to mineral resources, a Joint Appraisal Mission Report (1999) noted conflicting authorities on matters regarding mineral prospecting and mining. Additionally, local authorities have a minimal role in the mineral resource management process, despite the fact that mineral depletion is occurring in the local communities area. Any attempts made by local authorities to make by-laws imposing mineral levy such kind of by-laws have been met with an "outcry of double taxation" by mineral concessionaires against both the central government and the local authorities.
The Tanzanian economy depends upon mineral resources for a major source of its revenues. However, mineral exploitation is often done without regard to environmental and social impacts. Thus the Mining Act of 1998 addressed this problem and required mining companies to conduct environmental impact assessments. Mining activities a major cause of environmental degradation by deforestation, destruction of habitat, loss of biodiversity and general damage to the land.
Local government as an administrative system has had troubled history in Tanzania. According to Mukandala (1998:7) attempts to implement decentralization in Tanzania have been done twice. The first was during the colonial period when independent local institutions were brought under colonial rule and at some point administered under the colonial local government system. This however ended in 1969 with the postcolonial government.
The second trial, according to Mukandala was made in 1984 after the failure of structural decentralization. It is not the intention of this report to review in depth of all the two trials periods but it is important to mention some critical stages of the attempts to decentralize.
During the colonial period, the colonial bureaucracy acted politically but pretended to give power to the indigenous people to control their localities. This was common during the British administration and popularly known as the "indirect rule." During the last eight years of the British Administration, there was an attempt to democratize the local government system in Tanganyika. Max (1991:24) argues that the enactment of the Local Government Ordinance (Cap 333) of 1953 which replaced the Native Authority Ordinance (Cap 72) of 1926 was meant to introduce an electoral process at the local level and hence give political legitimacy to the local leaders.
The post colonial state did not abolish the inherited local government structure, instead it integrated the system into the government and its ruling party, namely the Tanganyika African National Union (TANU). The Local Authority Ordinance that had provided for 38 local authorities was revised in 1962 and repealed the sections that established native authorities. Moreover, the 1962 amendment repealed the Africans Chiefs' Ordinance of 1953. The chiefs' roles and functions were abolished completely, leaving them powerless.
Therefore, neither rural nor urban authorities were fully democratic institutions when Tanganyika received independence in 1961. Still the period 1960s experienced the process of power consolidation. Oyugi (1988:103) holds the view that since the mid of 1960s, the centralization of power gathered momentum with the decline of competitive politics in 1965. The establishment of bureaucratic institutions characterized the period after independence with little done to develop the local institutions.
The local government system was made part and parcels of TANU, repitition in 1965. For example, the Local Government Election Act No. 50 of 1965 decreed that all councilors had to be TANU members. Further reforms were introduced in 1969 after the Arusha Declaration of 1967. First, Ward Development Committees (WDCs) were established to replace the village development committees. Second, division secretaries of TANU replaced the division executive officers. These secretaries were then to act as party and government heads in their areas.
The prevailing ruling party policy in the early 1970s was to reorganize the government administration so as to conform with the socialist development. Reorganization of the government was supposed to provide a system that gave more local freedom for both decision-making and participation in matters which were primarily of the local impact. Parliament enacted the Decentralization of Government Administration (Interim Provisions) Act of 1972 to implement the reorganization policies. This abolished local government authorities. Much larger District Development Councils and Regional Development Councils were formed under the 1972 law. The said law also removed local representative councils and increased the ruling party's power by providing overriding power to TANU leadership and government bureaucrats. This period of decentralization lasted for ten years and was described by Oyugi as "misleading and confusing to be called decentralization". (Oyungi, 1998: ). This period was accompanied by strong emphasis on economic planning and party domination. The period depicted a number of scenarios as discussed below.
First, power was consolidated at the grassroots level with centrally appointed regional and district heads. Secondly, Oyugi points out that there was as shift from center to local levels of well-trained and qualified personnel. Max (1991: 88) agrees and contends that during this period ("Madaraka Mikoani") the decentralized system turned the district councils into " rapid bureaucratic organizations dominated by officials…"
During this period (1972 - 1982) there was no local government system in Tanzania. District/urban development councils replaced what we might call local government system.
With the abolition of local government system in early 1970s several analysts attribute the re-introduction of local government in 1980s to bad administration and mismanagement during the 1972-1982 periods. Perhaps, it is also due to the inability of the decentralized structures introduced in early 1970s to deliver goods. Many analysts would attribute the re- introduction of local government in 1980 to the rapid decline in essential services due to the economic crisis of the late seventies and eighties.
Again in 1982, the local governments were re-established to enhance and affectively decentralize the government administration. This was done by facilitating more effective democratic participation in decision making and implementation at the village, district and regional levels (Max 1991:143)
During the general elections of 1980, the ruling party, namely Chama Cha Mapinduzi (CCM), promised to re-introduce local governments in Tanzania. After the election, the party directed the government to implement the policy of re-introduction of local government through the Prime Minister's Office (PMO). Soon thereafter, the PMO appointed a committee of seven experts, which by April 1981 submitted its report to the PMO; and then local government bill was prepared and submitted to the parliament in the same year.
Accordingly, the National Assembly enacted the following Local Government Acts in April 1982:
According to Max, the significant change worth noting is the amendment of the Constitution of the United Republic of Tanzania (URT) through Act No. 15 of 1984 which had the effect of making the existence of local government authorities constitutionally sanctioned.
Decentralization in the 1990s must be viewed in light of economic, social and political changes that took place in Tanzania by then. The introduction of Bill of Rights (in 1985) and multi-party democracy (in 1992) in the Constitution of the United Republic of Tanzania of 1977, expanded the potential space for the respect for human rights, basic freedoms, rule of law, political transparency and good governance. The twin process of reforming the civil service (central government) and the local authorities in Tanzania have had the effect of the former devolving more authorities to the latter. Accordingly, the institutions under local authorities have been designated as the providers and producers of most social services and goods in the new setting. The reform involves decentralization of public service delivery linked to devolution of political powers to lower levels as far as possible and feasible.
The decentralization policy is enacted through the Regional Administration Act (1997) which effectively initiated the decentralization process by scaling down the roles, functions and staffing at the regional level. According to the Act, urban and district authorities are allowed to interact directly with the central government ministries on issues of concern and interest in their areas of jurisdiction. They can work with other organizations located within their respective areas and with NGOs.
Some key structural elements are supposed to appear in each and every local government. As far as the environment is concerned, the Act No.6 of 1999 which amended the Local Government (District Authorities) Act of 1982], establishes three standing committees, one of which is the Economic Affairs, Works and Environment Committee. It also amends the Local Government (Urban Authorities) Act of 1982 to establish three Standing Committees one of which is the Urban Planning and Environment Committee. More importantly, district authority duties have been explicitly laid out with regard to the environment. It states that, "it shall be the objective of the local authorities in performing their functions to provide for the protection and proper utilization of the environment for sustainable development."1 Likewise, the objectives and functions of urban authorities have been reformulated as "to take necessary measures to protect and enhance the environment in order to promote sustainable development."2
In the late 1990s the Government of Tanzania introduced the Local Government Reform Programme. According to the Local Government Reform Programme Report (1999) the main objective of the reform is to "…improve the quality of and the access of public services provided through or facilitated by local government authorities."3 It further states that the goal will be achieved through the reorganization programme and will have two components:
A major assumption of the reform programme is that by transferring responsibilities of managing funds and personnel from the central government to the district councils, delivery of social services will improve. It is also assumed that by making the district councils directly responsible for self financed service provision, the councils will be more active in mobilizing local resources in order to finance their programmes.
Therefore, the main goal of the reform programme is to increase the local communities accountability and responsibility for their own development. This can be achieved through the devolution of process to the local authorities like:
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Local Government Reform Programme components:
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The above components emphasize decentralization and facilitate the implementation of the local government reform programme in the main phases of the decentralization process though sometimes overlap.
Besides the public sector and local government reforms stressing the need to decentralize, several other macro -policy documents published in recent years have also reiterated this new thinking in government. Several government policies published between 1995 and 1998 and the amendments made on the Local Government Acts have emphasized the need for local communities to participate in the environmental management.
To attain sustainable development, Tanzania needs to balance its accelerated economic growth with efficient management of the environment, coupled with sustainable use of natural resources (Liviga, 1999:11). Currently, however, the central government lacks the ability to manage the natural resources. Therefore, the central government needs to devolve power to local authorities to attain sustainable development.
Because of the complex interactions between different environmental management institutions, the responsibility for managing the environment cannot be a province of a single department or ministry within government. Multiple actors at both the central and local levels must act together to form new cooperation and partnerships. This will ensure a more systematic approach towards conservation and sustainable utilization of natural resources.
The Local Government Reform Programme, stresses the need to devolve the framework for environmental management. Therefore, the local communities level of participation and authority to deal with environmental issues must be increased. This can only be achieved by devolving the powers from the central government to the local government. This must also be coupled with the creation of an enabling environment for them to exercise those powers.
Tanzania has experienced a number of policy reforms in recent years. As seen earlier, most of the policies have stressed the need for community participation and involvement in management of the environment and natural resources. The National Forestry, National Environmental, Wildlife and Land policies will be reviewed below.
In 1998, the Tanzanian Government reviewed its 1953 Forest Policy and adopted the National Forestry Policy (NFP) by focusing on sustainable conservation of forest resources, the NFP seek to achieve its policy goal of "enhancing the contribution of the forest sector to the sustainable development of Tanzania and the conservation and management of natural resources for the benefit of present and future generations."4 This new policy requires a legal framework which clearly spells out the mandates and responsibilities of named institutions be enacted to translate the goal into action.
NFP's objectives :
The NFP sets four priority areas for legislation and implementation: 1) forest land management; 2) forest-based industries and products; 3) ecosystem conservation and management; and 4) institutional and human resources.
NFP introduces a decentralized system of forest management which includes village forest reserves. Not until recently were district councils mandated to manage national forest reserves on behalf of the central government. Before 1998, the Regional Forest Officer collected licensing and revenues for the Central Government Forest Reserves with or without the attention of district authorities (Kilahama, Massao, 1999). Now, under the NFP, management responsibilities are delegated from the forest authorities to one or several executive agencies. "To ensure efficiency in forest management and conservation, the central government forest reserves will be managed by one or several specialized executive agencies or by the private sector…"5
The policy, however, still recognizes the existence of local government forest reserves, which will continue to be managed by local authorities, specialized executive agencies or even by the private sector. Designation of village forest reserves will be managed by the communities. " Village forest reserves will be managed by the village governments or other entities designated by village governments for this purpose, such as NGOs, user groups , associations, religious institutions, etc. The reserves will be demarcated on the ground, management objectives defined, and multi-purpose forest management plans prepared covering all different uses of forests."6
This approach allows villages to control the rate of environmental degradation despite various institutional constraints encountered. Granted appropriate user rights and security of tenure as incentives for sustainable forest management, local communities are likely to participate actively and effectively in the conservation and management of their forest resources.
Therefore, the FBD must designate forest reserve areas that will be managed as Joint Forest Management Areas. The problem at the community level in some areas, is that there are no well established community based organizations (e.g. NGOs or CBOs which are able to influence management of forestry activities). The NFP addresses this problem by stating, "in order to improve forest conservation and management, and to ensure equitable sharing of benefits amongst all stakeholders, joint agreements between the central government, specialized executive agencies, private sector and local governments, as appropriate in each case, and organized local communities or other organizations of people living adjacent to the forest will be promoted."
The NFP provides for mandates of main stakeholders in forest conservation and management. Specific mandates given to local governments and communities include: to manage local government forest reserves of conservation and biodiversity values; to regulate policy implementation; to conserve and manage village forest reserves and trees on farms; and to participate in joint management of conservation areas.
The National Environment Policy (NEP) recognises the indispensable role of local governments in achieving its policy objectives. This is because most local authorities are better placed to receive local concerns and implement ways to create sustainable conditions. Local governments also construct, operate and maintain economic, social and environmental infrastructure, and establish local environmental policies and regulations. The NEP recognizes that local governments are better able to educate, mobilize and respond to the local community, also, enhance and implement environmental objectives.
The cabinet constitutes the apex coordination and policy committee at the national level, where all ministries present major environmental concerns. Environmental management in Tanzania is under the Vice President's Office (VP) which implements the policy through relevant Ministries and specialized committees. However, the policy has concentrated most of the powers and functions into VP office through the Division of Environment. Mandates flow from the VP office to the local governments but this is not clearly expressed in the NEP. As stated earlier, "the VP's office is expected to assist Ministries, public bodies and private persons engaged in activities which are likely to have a significant impact on the environment. But the coordinating role of the VP's is not clearly evident at the local level." (LEAT, 1998).
The NEP advocates for the formation of environmental committees to coordinate natural resources management at the regional, district, ward and village levels. As indicated in paragraph 104 of the NEP, environmental committees "shall be responsible for coordination and advising on obstacles to the implementation of environmental policy and programmes, promoting environmental awareness; information generation, assembly and dissemination (sic) on the environment relating to district, ward or village."7
These provisions will await the enactment of the framework law on environment so as to give normative effect to the policy statements.
The Government in 1995 promulgated the National Land Policy (NLP). The main objective of the NLP is to promote and ensure wise use of land, guide allocations, prevent degradation and resolve conflicts. On the issues related to environmental management, this policy is one of the major guiding principles to local authorities, which are in dire need of decision making mandates on land use and resources.
Admittedly, land tenure issues are fundamental to the sustainable utilization of land resources. Security of land tenure and resources influences the level of investment on land and conservation of land based natural resources. In other words, natural resource management depends on land tenure and the allocation of specific user rights. In Tanzania, the President owns the land in trust for present and future generations. The Commissioner for Lands acts on behalf of the President and administers the land. The dual system of land tenure introduced by the colonial regime has been maintained by the NLP. Right of occupancy, which is the main form of tenure, can either be acquired through a grant by the Commissioner for Lands or through customs and tradition.
The NLP tries to protect the environment and natural resources. It reserves village lands and some communal areas for conservation purposes (e.g. forests on village land). Furthermore, the NLP protects highly sensitive areas such as water catchment areas, forests areas of biodiversity, national parks, wetlands and etc. The NLP declares, "mechanisms for protecting sensitive areas will be created.... These areas or parts of them should not be allocated to individuals."8
The NLP directs that "permits, licenses, claims and rights for exploitation of natural resources be issued in line with land use polices, and environment conservation policies and programmes."9 However, it is not clear how licensing mandates will be coordinated at the local and central government levels. Another apparent gap in the policy is the unclear devolution of land management responsibilities from the Commissioner for Lands to the local government.
This part examines the major legislation pertaining to the local government authorities in Tanzania and provides a brief description of the local government institutions. This part also looks into the functions and powers of the institutions involved in managing environment in areas of their jurisdiction. Further, it attempts to give an analysis of the problems in the legal framework, which acts as an obstacle to the local government authorities in providing for efficient and effective protection and proper utilization of environment in areas of their jurisdiction.
The main legislation examined in this part are:
The Local Government authorities in Tanzania are under the jurisdiction of the Minister responsible for local government affairs. According to the Local Government (District Authorities) Act of 1982 and Local Government (Urban Authorities) Act of 1982 and their amendments, the village, district and urban authorities are responsible for: planning, financing and implementing development programmes within their areas of jurisdiction.
Each authority has to suppress crimes, maintain peace, good order and protect the public and private property; promote the social welfare and economic well- being of persons within its areas of jurisdiction, control and improve agriculture, trade and industry, further and enhance health, education and social life of the people, and fight poverty, disease and ignorance.
In performing their functions, the local government authorities must protect and properly utilize the environment for sustainable development. In addition, local government authorities have the legislative power under Act No. 7 of 1982 and Act No. 8 of 1982. The two pieces of 1982 local government legislation empower the authorities to make by-laws, which are applicable in their areas of jurisdiction.
It is important to point out here that the local government authorities are also designated as corporate bodies having perpetual succession, capable of suing and being sued, and capable of holding and purchasing, or acquiring and disposing of any movable or immovable properties.
Local Government (District) Authorities Act of 1982 creates district based local government authorities in Tanzania. The Act provides for, inter alia, the establishment, composition, functions and legislative powers of district, township councils and village authorities.
At the village level, the government structure is comprised of a village assembly consisting of all persons aged 18 and above. The corporate entity of a registered village is the village council comprising of a chairman or chairperson elected by the village assembly. There are also village committees covering such matters as planning, finance, economic affairs, social services, security, forest protection, water resources etc [Section 35].
The village council's functions and roles include planning and coordinating activities, rendering assistance and advice to the villagers engaged in agriculture, forestry, horticultural, industrial or any other activity, and to encourage village residents to undertake and participate in communal enterprises. Propose by-laws must be adopted by the village assembly before being submitted to the District Council for approval [Section 163]. In addition, Section 29 of the Act provides for division of districts into wards. As an administrative subdivision between the village and the district, the ward reviews the proposed village council's projects in its jurisdiction and approves them for passage up the line to the District Development Committee.
Local Government (District) Authorities Act of 1982 as amended by Act No. 6 of 1999 establishes the Ward Development Council (hereinafter referred to as "WDC). The WDC is comprised of a councilor representing the ward in the District Development Council and chairpersons of all village councils within the ward. The WDC also includes member(s) of the district council, who ordinarily reside in the ward; and invitees from, for instance NGOs and other civic groups involved in the promotion of development in the ward. However, the invitees have no right to vote in the meetings. The WDC is responsible for developing general development plans for the ward Further, the WDC must manage disasters and environmental related activities within its ward.
At the district level, there is a district council composed of members elected from each ward; members of parliament representing constituencies within the area of the district council; three members appointed by the minister responsible for the local government and one member representing the constituent village councils on a rotational basis. [Section 35, Act Number 7 of 1982].
District Councils, through the appropriate District Development Committee (hereinafter referred to as "the DDC"), supervise the implementation of all plans for economic, commercial, industrial and social development in their respective areas. Also, the council approves by-laws made by the village councils and co-ordinates plans, projects and programmes for the villages within its area of jurisdiction. Apart from the DDC, there are other council committees. These committees are for finance, administration and planning; education, health and water; and economic affairs and environment.
Local Government (District) Authorities Act, 1982 [Act No. 7 of 1982] also provides for the protection and management of the environment on the part of the district council. This may be deduced from section 111 of the Act, which promotes social welfare and economic well being of all residents within its area of jurisdiction.
Protection and management of the environment is further provided for under section 118 of Act number 7 of 1982. District councils are required to take the necessary measures to control soil erosion and desertification; to regulate the use of poisonous and noxious plants, drugs or poison; regulate and control the number of livestock; maintain forests; manage wildlife; ensure public health; provide effective solid and liquid waste management protect open spaces and parks etc. The Act also has provisions for a scheduled timetable and management of the environment.
Under section 148 (1) of the Act, the District councils are empowered to pass bylaws applicable for the whole district. The council must give public notice to the local inhabitants of the District of its intention and provide a comment period to the inhabitants before passing the bylaws. After commenting, the bylaws are submitted to the regional officer who will comment and then submit the draft bylaws to the minister of local government affairs for his approval [Sections 148-150]. Upon approval, the by-laws are gazetted and will be enforceable from the date of publication or from the commencement date specified in the bylaws.
Local Government (Urban Authorities) Act of 1982 [Act Number 8 of 1982] provides for the establishment, composition, functions and legislative powers of the urban based local government authorities (urban councils) in Tanzania. The urban council is comprised of the governing bodies for townships, municipalities and the City Council (Commission) of Dar es Salaam.
Composition of a town council is provided for under section 19 (1) of Act 8 of 1982. Township councils cannot have more than three members appointed by the local minister of government affairs. The council is comprised of members elected from the ward within the town and members of parliament representing constituents within the town. [Section 20]. The elected members then elect a chairman and vice-chairman for each town council.
A municipal council is made up of members elected from wards within the municipality; member of the parliament representing the constituencies within the municipality; not more than three (3) members appointed by the minister responsible for the local government affairs from among the residents of the municipality. [Section 20]
Section 19 (3) of Act No. 8 of 1982 provides for the establishment of City Councils. City councils are composed of one member elected form each wards within the city; the members of the Parliament representing constituencies within the area of the city council; and not more than three (3) members appointed from the residents of the city [section 20].
Each town council, municipal or city council has a chairman, vice-chairman, mayor and a deputy mayor respectively. [Section 20]. The chairman and vice-chairman of a town council, and the Mayor and the Deputy mayor of a municipal council and a city council, are elected by members of the councils from amongst the elected members of the urban authorities.
Section 42 of Act number 8 of 1982 provides for the establishment of the urban authorities committees who are in charge of finance and administration; economic affairs, health and education; and urban planning and environment. The city council shall establish such committees as may be determined by the minister in the order establishing it.
The objectives and functions of the urban authorities are provided for under section 54 of Act number 8 of 1982. These functions include: facilitating the maintenance of peace, order and good governance; and promoting the social welfare and economic well-being of the local community. Urban authorities are expected to further the social and economic development of their areas; take the necessary measures for the suppression of crimes and protection of public and private property; regulate and improve agriculture, trade, commerce and industry; further and enhance health, education, and the social, cultural and recreational life or of the people; and to eradicate poverty and distress.
Section 55 (1) provides for the general duties of the urban authorities which include: taking and requiring the taking of measures for conservation of natural resources, prevention of soil erosion and prohibition and control of cultivation; to inspect all meat, fish, vegetables and other foodstuffs and liquids intended for human consumption, and to seize and destroy the foodstuffs or liquids which are unfit for human consumption; to keep in good order and repair all public latrines, urinals, cesspits, dustbins, and other receptacles for the temporary deposit and collection of rubbish, and to provide for the removal of all refuse and filth from any public or private place; to take measures aimed at preventing injury to public health etc. These functions are also amplified in the schedule to Act number 8 of 1982.
Urban authorities may, subject to the consent of the proper officers pass applicable bylaws to their areas. [Section 80 (1)] Urban authorities are required to give public notice to the local inhabitants of the intention to make the bylaws for comments. [Section 81]. After the expiration of the notice, the draft bylaws must be submitted to the Minister for approval and gazettment.
It is important to note that the local governments are not replicated at the regional level. However, regional commissioners, secretaries and officials (who form Part of the regional administration), like the local governments, are responsible to the Minister for Local Government and Regional Administration. Normally, the regional authorities provide technical advice and support and exercise supervision to the District councils. Under section 12 of the Regional Administration Act, 1997 [Act No. 19/1997], it is provided that it shall be the duty of the Regional secretariat to facilitate the functions of the local government authorities within the region. However, the experience is that the regional administration can put heavy pressure on the local authorities and veto their development plans and programmes.
The Tanzanian local governments have been unable to effectively and efficiently manage the environment due to the unworkable legal framework currently in place. This section attempts to examine and provide solutions to these problems.
Most people in rural areas depend upon the natural resources for their livelihood, yet, they have no legal rights to them. Despite legislative recognition of customary land rights, state and other investors continue to ignore rural peoples' rights to their natural resources. We have witnessed over the years the abolition of customary land tenure without payment or compensation to the rural people. For instance, Land Development (Specified Areas) Regulations of 1986, [Government Notice No. 659 of 1986] and the Extinction of Customary Land Rights Order [GN. 88 of 1987] abolished all customary land rights in most of the Arusha region (Shauri: 1996). These lands vested to the district councils who were then allowed to distribute the land freely.
Without customary rights and benefit sharing mechanisms on natural resources use are proved to be effective in practice, local populations will continue to become indifferent to the environment because they have no incentive to contain degradation and conserve the environment and natural resources.
The formulation and implementation of by-laws have been plagued with a number of problems. First, the bylaws' formulation process is slow and inefficient. The long and circuitous route for bylaws to be passed and enacted into law by the minister does not allow for effective rule-making. Environmental problems that need immediate remedies and protection typically fail. For instance, Endagwe village near Lake Babati decided to draft a bye-laws to protect a certain forest in the village. When a non-member of the village burned and cleared part of the area, the village sued him in district court. However, the bylaw had not been approved by the Prime Minister's office. Consequently, the case was dismissed and the village was ordered to restore the land to the defendant who continued to degrade the land with impunity.[ Green:1995:29]
This problem is mainly attributed to inadequate judicial mechanisms. While local government can bring court cases under legislation pertaining to the environment, often, such cases are delayed for years, and no specially trained judiciary exists to hear environmental cases. Furthermore, no formal mechanism exists to hear such cases.
The capability of the law enforcers, especially in the rural areas is inadequate and lacks efficient monitoring capacity. This is partly due to the lack of modern working equipment and legal materials including legislation on environmental management.
Most legislation is outdated and has inadequate penalties to deter repeat offenders from degrading environment. For example, most of the penalty provisions were enacted in the 1950s and 1960s. And under Section 26 (1) of the Forests Ordinance, Cap 389 that except where another penalty is provided any person who is convicted of an offence under the Ordinance shall be liable to a fine not exceeding Tshs. 3000/= (equivalent to USD 3.72 at the rate of $1= Tshs. 805) or to a term of imprisonment not exceeding six months.
Another scenario is depicted in the unreported case of Republic vs. Ramla Halfan [Alasiri: 2000]. There, the court found the alleged offender guilty for her failure to keep her cesspit in good order and repair. The court convicted the offender and ordered her to pay a fine of only Tshs. 15,000/= (equivalent to USD $18.63). The latter is so minimal and therefore does not act as deterrent against future violations, instead, it allows violators to profit from their illegal acts. In addition, the low fines discourage prosecutors from prosecuting offenders of environmental violations.
The current local government structure does not provide adequate autonomy to local governments. They are unable to make important decisions independently because many legal provisions make the local government dependent on the Central Government. Indeed, according to Ngware and Haule (1993.5), in order for local governments to be successful in sustainable grassroots social development, they must have the unfettered power to serve the local people rather than act as agents for the central state.
Ngware and Haule also argue that limited autonomy and authority of local governments is evidenced by hiring and disciplining mechanisms for local government personnel. Apart from the so-called "casual labourer", local authorities lack the power to discipline or dismiss nor unruly personnel. All these powers are vested in the Local Government Service Commission, which is the appointing and disciplinary authority. This organ, as Ngware and Haule argue, is not connected to the local authorities, because the local authorities "employees" are subject to the control of the district/municipal/city directors who are appointed by the President. These directors wield a lot of clout because of their decision making powers and control of financial matters.
As a matter of fact, the division of responsibilities between, the district, divisional, ward and village in relation to decision making and particularly in environmental management, is not well stipulated in the current decentralization process. For example, the district council is the highest level of analysis and village level as the lowest level within the district, we can not see clearly the position of division and ward in the decision making process. Villages are directly responsible to the district councils without necessarily passing through the wards.
Again, in practice, most of the district councils rely more on villages than wards and/or divisions in day to day functions of the local administration. However, it is important that these two structures, namely, wards and divisions are integrated into environmental management due to the following reasons.
In an ideal situation, it is assumed that elected members of the local government make decisions while local bureaucrats implement those decisions. However, this is not the case . According to Kessy (1999:76), the decision making process in local authorities is mainly done by local bureaucrats (Council officers in collaboration with District and Regional Commissioners) and not the elected members (councilors) as one would expect. It was found by Kessy in his research of two district councils (Moshi and Lushoto) that, most of the decision making process, from agenda setting to the implementation stage, is mainly controlled by local bureaucrats. This phenomenon, according to the study, is attributed to the central government's reluctance in emphasizing high quality councilor-ship. Instead, the outdated provision of someone who can read and write is the criteria used to elect a councilor. The level of interaction between councilors and council officers in the decision making process is minimal. Despite the council officers typically being better educated, more experienced and having an expertise in environmental matters as compared to the low educated councilors who are sometimes more vocal in small policy decision issues.
Decentralization continues to spark continual debate in Tanzanian polemics. A quick assessment, however, indicates that local governments have a limited capacity to manage natural resources. Colman (1996:42) argues that local governments' performance in developing countries have not been successful in the management of the environment, as they face constant problems in various operations. He identifies the local institutions formation and organization, particularly in developing countries, as the source of problem. He reasons that the local institutions in developing countries have never experienced self- governance since their time of creation. They have been subjected to central government control in both financial and decision-making capacities.
As shown above, land tenure is unclear in Tanzania and this affects rural areas where most of the local governments are based. If laws do not clearly define tenure and access to natural resources, local governments will not be able to manage these resources. In addition, the central government in the past has shown its ineptness in dealing with environmental management; hence, decentralized management of natural resources is required.
Clarity is also lacking in institutional mandates to manage natural resources. In the Forestry sector for example, the Director of Forestry is in charge of all forests in Tanzania though there are forests, which are under local authorities. But there have been instances where districts and regions have collided in the issuance of licenses for exploitation on forest resources on public lands and sometimes districts have ventured to issue licenses on central government forest reserve.
Most local governments have no laws or policies to implement, thus, limiting their capacity to protect natural resources. This situation is exacerbated by the policy of retrenchment, which also affected local governments. In the Kyela District, there are only five employees under the District Natural Resources Officer to manage the fisheries, forestry and wildlife sectors in a district with a population of more than 300,000 people (pers. comm. with A. Libenanga, District Natural Resources Officer, Kyela).
The capacity of local governments to manage cannot be enhanced under the current system of revenue sharing. For example, the forest sector districts can only retain revenues accruing from local government forest reserves. Despite the presence of central government and public land forests within district lands, districts are only required to collect revenues from those forests and remit it to the Director of Forestry. Districts may only charge levy above the specified tariffs on forest produce set by the Director of Forestry. At the same time, districts must ensure the protection of those forests in central government forest reserves and public lands while there are no funds allocated for that assignment.
Wildlife utilization faces a similar problem. Most districts providing hunting blocks for tourist hunting give at least 25% of their revenues to the district councils. And the villages typically never benefit from this money. Admittedly, it is in villages where wildlife co- exist with people and wildlife related problems are experiences. In that way local people rarely get the incentive to conserve wildlife.
The central government's control over revenues hinders the local governments ability to manage and protect its resources and villagers. This view is shared by Kamata (1993) who gives an example of that the Harare city council, which had a conflict with the central government because all the lucrative sources of revenue at the local level are owned by the central government. This applies also to the local government system in Tanzania, where most resource bases for local government revenues are owned by the central government.
In some districts conservation of natural resources is not a priority. It only becomes a priority if it is a source of revenue generation. Nothing is being ploughed back to develop or conserve the resources. In some areas, local councilors will not promote allocation of funding to the natural resources sector because it is not viewed as important. There is a problem of political decisions being made without consideration of advice from natural resources staff. In some instances politicians think that in order to conserve natural resources the only way is to ban local people from using such resources hence causing encroachment.
The governing policy for environmental management in the country is well formulated, but the mechanisms and plans of actions at the local level are not well implemented. There is inadequate expertise in the field of environmental education and public awareness to implement those designed policies at all levels. Therefore, a concerted effort to formulate a common training package that should contain basic information about environmental issues and problems in all levels of the government should be provided. Training of this kind should be seen as one of the strategies and bases for capacity building at the local level.
It should also be recalled that many of these laws dealing with environmental issues are based on colonial perceptions and are typically " command and control" oriented. This acts as a disincentive for compliance and leads to conflicts between different government departments, institutions and local authorities. Hence, resulting in ineffective laws for environmental management.
Moreover, the institutions dealing with overseeing the management of natural resources, in some respects, overlap in functions and are constantly re-inventing the wheel. Traditional natural resource management institutions and regulative systems have not been given support by the government (Liviga, op. cit.: 27). As stipulated in the National Conservation Strategy for Sustainable Development:
This phenomenon has therefore resulted into the ambivalence between the central and local government over their duties and mandates on environmental management. Green (1995:26) further argues that district council staff are employed by the district councils but are instead, required to implement and support national governmental policies.
The current process of decentralization in Tanzania has produced mixed results in terms of the degree in which power and responsibility for the management of the environment at the local level is shared. Decentralized institutions lack the capacity to manage the environment and conserve natural resources. This is furthered by the fact that little or no resources are available to the institutions entrusted with the duty of managing the environment.
Under Article 27 of the Constitution, the public is called upon to ensure that the natural resources of the country are managed properly as it states:
(2) All persons shall by the law be required to safeguard state and communal property, to combat all forms of misappropriation and wastage and to run the economy of the nation assiduously, with the attitude of people who are masters of the fate of their nation."
However, the role of local authorities under the current decentralization process for environmental management is not clearly stipulated. This is exacerbated by bureaucracy at the centre resulting in the inadequate release of allocated funds. This leads to frequent delays in the delivery of services or the completion of environmental projects. In addition, staff shortages and/or inadequately trained staff for dealing with environmental projects at the local level is a continual problem. As such, local government positions are often not respected not desired, and this leads to turnover, lack of morale and commitment to innovate or deal with local environmental issues creatively.
There is also inadequate policy and legal provisions, disintegrated authoritative, administrative and institutional mechanisms to handle environmental matters. In many cases, the authority is delegated to local organizations but they are not given the resources to perform their duties properly. As a result, local authorities are nothing more than bureaucratic instruments for the central government and do not generate alternative values, preferences or aspirations.
In conclusion, environmental management lacks harmony and continuity from the national to local levels. It is at the local level where systems of environmental management become complex and serious attention is needed for sustainable environmental development. Therefore, environmental management requires the integration of all institutions in the field and empowering local authorities for management and conservation of natural resources and the environment.
For effective environmental and natural resources management by local authorities, decentralization must ensure effective devolution of mandates from the centre to the local levels. An ideal decentralized system according to UNDP (1997) has the following main characteristics:
Review of the progress of decentralization in Tanzania indicates that UNDP goals the five have not been met. It is therefore recommended that the impetus of future local government reforms should be geared towards effective devolution of powers, clarification of mandates and giving ownership and access to natural resources as pre-requisites for empowering local governments to manage the environment and natural resources. Local governments should be allowed to hire and fire their own staff, plan their conservation programmes, control natural resources situated in their geographical boundaries and generate revenues from planned and sustainable utilization of natural resources in their areas.
Since, the success of environmental management depends on the involvement of local people, environmental programmes should ensure that local people benefit from such programmes. In addition, they must be empowered to undertake environmental management tasks through participatory approaches at the local levels. Environmental programmes should be tailored in a way that local people get immediate economic benefits by engaging themselves in conservation efforts.
The government should consider the need to involve and strengthen the participation of the private sector, NGOs and CBOs in the management of environment. The process of registration and regulation of NGOs and CBOs should also be devolved to the local level. Currently, the registration process of NGOs is too bureaucratic, cumbersome and done only at the national level. By encouraging the formation of NGOs and CBOs, plus the participation of the private sector in conservation efforts, the role of local governments in conservation of natural resources and the environment will be achievable and highly successful.
© 2001 Lawyers' Environmental Action Team
Contact LEAT at leat@twiga.com