THE UNIVERSITY OF IRINGA

(A FORMER CONSTITUENT COLLEGE OF THE TUMAINI

UNIVERSITY)

FACULTY OF LAW

CHALLENGES IN THE APPLICATION OF THE PUBLIC TRUST DOCTRINE IN

ENVIRONMENTAL LAWS IN TANZANIA

BY,

ERNEST UZIA

DEBORAH D. JOSEPHAT

A RESEARCH REPORT SUBMITTED IN THE PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE AWARD OF THE DEGREE OF LAWS

THE UNIVERSITY OF IRINGA

JULY, 2013

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

CERTIFICATION .......................................................................................................................... v

DECLARATION ........................................................................................................................... vi

DEDICATION .............................................................................................................................. vii

ACKNOWLEDGEMENT. .......................................................................................................... viii

LIST OF ACRONYMS. ................................................................................................................ ix

CHAPTER ONE ............................................................................................................................. 1

1.0 Background of the problem ...................................................................................................... 1

1.1. Statement of the problem ......................................................................................................... 2

1.2 Research hypothesis .................................................................................................................. 3

1.3 Significance of the study ........................................................................................................... 4

1.4 Objective of the study ............................................................................................................... 5

1.5 Scope of the study ..................................................................................................................... 5

2.0 Literature review ....................................................................................................................... 6

3.0 Method of study ...................................................................................................................... 12

3.1 Chapter synopsis ..................................................................................................................... 12

3.1.1 Chapter 1 .............................................................................................................................. 13

3.1.2 Chapter 2 .............................................................................................................................. 13

3.1.3 Chapter 3 .............................................................................................................................. 13

3.1.4 Chapter 4 .............................................................................................................................. 14

CHAPTER TWO. ......................................................................................................................... 15

THE HISTORICAL DEVELOPMENT OF THE PUBLIC TRUST DOCTRINE. ..................... 15

2.0 Introduction ...................................................................................................................... 15

ii

2.1 Evolution of the public trust doctrine ..................................................................................... 15

2.1.0 International and regional instruments................................................................................. 18

International Instruments .............................................................................................................. 18

2.1.1 The United Nations General Assembly Resolution ............................................................. 18

2.1.2 Agenda 21 ............................................................................................................................ 19

2.1.3 The Stockholm summit ........................................................................................................ 19

Regional Instruments .................................................................................................................... 19

2.1.4 The African Charter of Human and People’s Rights ........................................................... 19

2.1.5African Convention on the Conservation of Nature and Natural Resources (1968) ............ 20

2.2.0 The Evolution of the Public Trust Doctrine in Tanzania’s Legal system. ........................... 20

.2.2.1 The Public Trust Doctrine after colonial era up to date ...................................................... 21

2.2.2 The constitution of The United Republic of Tanzania of 1977 ........................................... 22

2.2.3 The Environmental Management Act No.20 of 2004 .......................................................... 23

2.7.2 The Wildlife Conservation Act No 5 of 2009 ...................................................................... 23

2.7.3 Water resources Management Act No 11 of 2009 ............................................................... 24

2.7.3 The Land Act [Cap113 R.E 2002] ....................................................................................... 24

2.7.4 The Mining Act No.14 of 2010............................................................................................ 25

2.7.5 The Petroleum (Exploration and Production) Act, CAP 328. ............................................. 25

2.3.8 The Forest Act No.14 of 2002 ........................................................................................ 26

2.7.6 Case laws ............................................................................................................................. 27

CONCLUSION. ............................................................................................................................ 29

CHAPTER THREE. ..................................................................................................................... 30

CHALLENGES FACING THE APPLICATION OF THE PUBLIC TRUST DOCTRINE ....... 30

3.1 Challenges facing the application of the Public Trust Doctrine in Tanzania. ........................ 31

3.1.1 Population size. .................................................................................................................... 32

iii

3.1.2 Lack of public oversight and participation .......................................................................... 34

3.1.3 Insufficient capacity of law enforcers and Legislative problems. ....................................... 36

3.1.4 Inadequate funding in the Environment sector. ................................................................... 37

3.1.5 Economic and industrial development. ................................................................................ 37

3. 1. 6 High dependence on fuel wood for cooking. ..................................................................... 39

3.1.7 Misinterpretation of statutory provisions on the public trust doctrine. ................................ 39

3.1.8 CONCLUSION. ................................................................................................................... 42

CHAPTER FOUR. ........................................................................................................................ 43

CONCLUSION AND RECOMMENDATIONS. ........................................................................ 43

4.1 Introduction . ........................................................................................................................... 43

4.1.1 Conclusion ........................................................................................................................... 43

4.1.2 Recommendations ................................................................................................................ 45

BIBLIOGRAPHY ......................................................................................................................... 47

iv

COPYRIGHT

This work is a copyright protected under the Copyrights and Neighbouring Rights Act No. 7 of

1999, Laws of Tanzania and International instruments for the protection of intellectual property

rights. And as such therefore, no part of this research paper may be reproduced, copied, adopted,

abridged or stored in any retrieval system or transmitted in any form by any means; electronic

photocopying, recording or otherwise, save for the application of ‘fair use doctrine,’ without prior

written permission of either the authors or of the Dean, Faculty of Law, Tumaini University, Iringa

University College.

v

CERTIFICATION

The undersigned do hereby sign to certify to have read and recommends that this

dissertation be accepted by the Tumaini University Iringa College of Tanzania, being a

partial fulfilment of the requirement for the award of a degree of Bachelor of Laws (LL.B).

………………………………………………………….

DR. THOMAS, M

(SUPERVISOR)

Signed at Iringa this……… day of.................,2013

vi

DECLARATION.

We, Ernest Uzia and Deborah Josephat, hereby declare that this research paper is our

original work. Where any part of this work has been obtained from other authors, we have

dully acknowledged them. We declare that this work has never been submitted in any other

university for the award of any Degree in Tanzania or anywhere.

Candidate’s name Ernest Uzia

Signed........................................................

Date..........................................................

Candidate’s name Deborah D Josephat

Signed........................................................

Date..........................................................

Submitted with the consent of

Dr. Thomas, M

............................................................

(Supervisor.)

vii

DEDICATION

DEBORAH D JOSEPHAT

I would like to dedicate this report to my beloved and adorable parents, Mr Josephat

Dongwe and Mrs. Zelda Dongwe who had always believing in me, encouraged me and

give me support to my academic life. I also dedicate this research paper to my beloved

young brother Godwill Josephat, and my sisters Irene, Alice and Glorious Josephat

Dongwe, for their presence, love and all support to my academic life.

Thank you for believing in us,May God Bless you abundantly.

ERNEST UZIA

This research paper is dedicated to my parents specifically to my parents Joseph Elias Uzia

and My lovely mother Rebecca Phillip and Dr. Mbuzukongira, my sisters Elizabeth, Janeth

and Pascolina Uzia, my Aunt Justina Philipo, uncle Bright and my lovely daughter Rebecca

for their encouragement and support on my study from the beginning,

Thank you for believing in me, May God Bless you abundantly.

viii

ACKNOWLEDGEMENT.

First of all, we are so grateful to the God almighty for giving us the strength and knowledge

to pursue this study until the end.

There are a number of people without whom; this research would not have succeeded.

Our particular acknowledgement goes to our supervisor and mentor, Dr. Thomas for the

helpful supervision, practical advice, patience and confidence he had in us during the

course of this research. May God Bless You Abundantly.

To our beloved families that is Uzia ’s family and Dongwe’s family, we are so grateful for

you moral, spiritual and financial support. Love you all.

In a special way, we acknowledge the help of, Dr. G. Mbuzukongira, Madam Joy Faida,

Advocate Lilian lutembeka, Elizabeth Uzia, for the greatsupport he has rendered me in this

research. Thank you, I am very grateful.

And finally to our dear friends, Josephine Maliaki, Bahati Mwang’amba, Jesca Tilya, Prisca

Mawoo,Amne Manangwa,Anneny Nahum,Mkama Gaya, Grayson Laizer and,Irene Mteti.

Thank you for sticking closer to us as brother and sister. Thank you and may God Bless you.

ix

LIST OF ACRONYMS.

1. ARMZ- AtomRedMetZoloto

2. EMA - The Environment Management Act.

3. NEAP - National Environment Action Plan.

4. NEMC - National Environment Management Council.

5. NEP - National Environment Policy.

6. NGO’s - Non Governmental Organisations.

7. NCSSD - National Conservation Strategy for Sustainable Development.

8. NRM - Natural Resources Management

9. NSGPR - National Strategy for Growth and Poverty Reduction (MKUKUTA)

10. UN - United Nations.

11. UNEP - United Nations Environment Programme.

CHAPTER ONE

1.0 Background of the problem

The public trust doctrine is rooted back during the colonial era whereby the certain resources

were fiduciary governed by the colonial government on the behalf of the public. This includes

land, natural resources and other properties which were under the colonial masters. For instance

Centralized state control over wildlife in Tanzania began gradually in the colonial era, but was

well-established at independence in 1961. When the German colonial administration took control

of what is now mainland Tanzania in 1891, it established regulations for controlling wildlife

utilization restricting local use by criminalizing traditional hunting and regulating trophy hunting

by Europeans. After World War II and under British rule, attention shifted to the preservation of

wildlife and the establishment of protected areas.1

The Public Trust Doctrine is relevant to the protection and conservation of the Environment as

its aim is to preserve natural resources in a manner that makes them available to the public for

certain Public uses. This doctrine serves two purposes: it mandates affirmative state action for

effective management of resources and empowers the citizens to question ineffective

management of natural resources. 2

The Public Trust Doctrine rests on the principle that certain resources like the air, sea, wildlife,

water and the forest have such a great importance to the people as a whole that it would be

wholly unjustified to make them a subject of private ownership. The said resources being a gift

of nature, they should be made freely available to everyone irrespective of their status in life.

1 http://www.wri.org/property-rights-africa/wriTest_Tanzania//documents/Tanzania_LessonBrief_4.pdf.

2 J. Razzaque, 'Case Law Analysis: Application of Public Trust Doctrine in Indian Environmental Cases' (2001)

Journal of Environmental Law, Vol. 13: 2, 221-234.

2

This doctrine enjoins upon government the duty to protect the resources subject for the trust for

the enjoyment of the general public rather than to permit their use for the private or commercial

purposes.3

The Public Trust Doctrine requires the government to preserve and protest certain resources that

the government holds in trust for the public.4 It represents a viable legal tool for establishing a

system of governance that provides a dynamic and interconnected intergenerational

responsibility for the management of natural resources.5

This research is therefore aimed at analysing the application of the Public Trust Doctrine in

Tanzania, of which will be cantered in various natural resource law which have incorporate the

idea of holding some property by the government on the behalf of Tanzanians.

1.1. Statement of the problem

The term Public Trust Doctrine is not strange in Tanzania which means is the principle that

certain resources are preserved for the public use and the government is required to maintain

them for the public reasonable. The Public Trust Doctrine in Tanzania especially in the

management of natural resource has in recent days attracted a lot of debate and police change.

For a long time the Tanzania government has considered itself the sole manager of all natural

resources obtain in the country6. In the constitution of the United Republic of Tanzania7 which is

3 M.C. Metha v kamal Nath and others (Writ petition [c] No.182 of 1996 supreme court of India.)

4 Hand book on environmental Law in Uganda. Page 23

5 Ibid page 24

6 Pdf http://dlcvm.dlib.indiana.edu/archive/00000317/nshalar042400.pdfconference paper . Accessed on 28.7.2013

7 Constitution of United Republic of Tanzania of 1977 as amended from time to time.

3

the mother law whereby all laws are given power by it, does not clear propound the concept of

the Public Trust Doctrine, however the concept of the Public Trust Doctrine has been enshrined

under the Article 9(c)8 whereby the state authority and all its agencies are obliged to direct their

policies and program towards ensuring that activities of the government are conducted in a

manner the national wealth and heritage are harnessed, preserved and applied for the common

good and also to prevent the exploitation of one person by another.

However the problem of the provision that is Article 9 of the Constitution of United Republic of

Tanzania9 which enshrine the basic principle in the application of the Public Trust Doctrine is

not enforceable by any court of law,10 therefore it is not binding to the state since they are the

directive principles therefore creates a loophole for the state as well as entrusted bodies to violate

the doctrine.

This thesis therefore shows evidence that enforcement of the Public Trust Doctrine is bound to

face a lot of challenges for example the government leaders have poor governance, whereby they

regard the natural resources as their private property and not as the trustees.

1.2 Research hypothesis

In the research the researchers are going to test the following hypothesis

The violation of the Public Trust Doctrine has been caused by the loophole which is created

by the mother law.

8 ibid

9 Part II of the Constitution of United Republic of Tanzania of 1977

10 Part II, the Fundamental Objectives and Directive Principles of the State Policy, Article 7(2) Constitution of

United Republic of Tanzania,

4

1.3 Significance of the study

i. This study aimed at establishing the legal duty of the state and the fiduciary duty it owes

the people of United Republic of Tanzania.

ii. It aimed at showing the applicability of the Public Trust Doctrine in Tanzania, this has

been through showing the doctrine’s incorporation into Tanzania’s legal system and

following its evolution right from the Roman Laws to date(In the 1977 constitution of the

Republic of Tanzania and other Laws)

iii. This study has also shown the relevance of the Public Trust Doctrine to Tanzania as an

independent and democratic state.

iv. This research has also shown the views of other researchers on the Public Trust Doctrine,

for example, Dinah Shelton and Alexandre Kiss, Professor Joseph Sax, James L

Huffman, Richard Epstein, inter alia.

v. This research will also act as a source of reference on the Topic (The Public Trust

Doctrine) to future researchers of Tumaini Iringa University and the whole community at

large.

vi. It also elaborated on the hindrances at least in all circumstances that the state faces while

carrying out this fiduciary duty.

5

1.4 Objective of the study

i. To show the application of the legal framework governing Public Trust Doctrine in

Tanzania.

ii. To show the instances when the Public Trust Doctrine has been breached and the

challenges it faces.

iii. To show the impact of breaching the public trust doctrine.

iv. To make recommendations to halt the challenges facing the application of the Public

Trust Doctrine.

1.5 Scope of the study

i. This research focused on the Public Trust Doctrine, with the exclusion of other principles

of Environmental Law.

ii. This research confined to the boundaries of United Republic of Tanzania, mainly

covering events between 1961 to date, with reference to other jurisdictions.

iii. It also hinged upon the challenges that affect the application of the public trust doctrine in

the protection of the environment.

iv. A review of the past and present literature on the Public Trust Doctrine has also been

included.

6

2.0 Literature review

Under this, we have made the critical assessment of the already existing environmental literature

in relation to the objectives of study that have been written on the topic of the Public Trust

Doctrine. It aimed at identifying what the literature cantered as well as what it doesn’t cover to

fill in the gaps left by such literature.

Dinah Shelton and Alexandre Kiss11 The concept of public trust expresses the idea that the

present generation holds the natural resources of the earth in trust for future generations. When

applicable as a legal principle, public trust contemplates that certain things, such as natural

resources and the exercise of public power, are held by governments in trust for the citizenry and

must be used for the public benefit.

In the common law, the Sovereign could own certain natural resources such as rivers and

waterways but it was a restricted ownership and could not be granted to private entities because

the Sovereign held the resources in trust for the use of the general public. We concur with the

concept of Shelton and Kiss that the government held certain thing in trust of the citizens and it

should not be granted to the private individual as the case may be.

In the Supreme Court of California, for example, held that the state has an affirmative duty to

take the public trust into account in the planning and allocation of water resources and to protect

public trust uses such as scenic and ecological values, whenever feasible. Urban needs for water

11Judicial Handbook on Environmental Law, at page 22

7

must be balanced with the ecological impact of water diversion from a lake whose shores, bed

and waters constitute a public trust12.

According to Professor Joseph L Sax,13 the government should hold certain natural resources in

trust for the people. In his opinion, this mechanism known as the Public Trust Doctrine should be

used to vindicate the evolving public interest in environmental protection. We concur with his

view. In Tanzania, the public trust doctrine is legislated, for example, in the 1977 Constitution of

the United Republic of Tanzania, the forestry Act, Water Resource Management Act and among

other laws, (as will be discussed later in this research), which vest management of natural

resources in the State. Since Professor Joseph Sax's revival of the doctrine as a vessel for

environmental legal advocacy in the early 1970s, it has been hailed by many as the most

powerful tool available for protecting natural resource commons attacked by others who argue

that use of the property rights-based doctrine will reify an ownership approach to natural

resources and obstruct the development of more stewardship-oriented legal theories of natural

resource management.14The Public Trust Doctrine is therefore a vital tool in checking

government actions with regard to environmental conservation. According to Professor Joseph,

in any trust- beneficiary relationship, like that created under the Public Trust Doctrine, there is

always a fiduciary duty owed to the trustee that is one part entrusting the trustee (another) to take

12 A journal by Moses Paul Sserwanga.

Available http://msserwanga.blogspot.com/search?q=the+public+trust+doctrine. Accessed on 26.7.2013

13 Professor Joseph L Sax, “Environmental Regulations,” 3rd Edition, Aspen, publishers, (2000) Gaithersburg. New

York Page. 329.

14 Ryan, Erin. Public trust and distrust: the theoretical implications of the public trust doctrine for natural resource

management. Environmental Law March 22, 2001

Also available at http://www.accessmylibrary.com/article-1G1-75162661/public-trust-and-distrust.html Accessed

on 04.6.2013

8

care of the property. In his opinion, the nature of the fiduciary duty created is in three major

aspects; first is that the property subject to the trust must not only be used for public purposes,

but it must be held available for use by the public; secondly, the property may not be sold even

for a fair cash equivalent and thirdly, the property must be maintained for particular types of

uses.15

Richard Epstein16 is in agreement with Professor Sax as also to him, the government should be

held liable for every action it does that reduces the economic life of private property. He believes

that every action that places the citizens as victims in respect to natural resources automatically

entitles them to compensation for the economic injuries sustained. We apparently agree with

Richard for the reason that acts like gazetting of forests that serve as habitat for various animals

is unconstitutional and therefore grounds for redress to the citizens whose economic life has been

depressed. The government of Tanzania should therefore listen to the voices of the Tanzania

people the majority of who are opposed to the destruction of Game Reserve for mining activities

( mining of Uranium around the Serous Game Reserve), Good governance calls for a democratic

government and society where the leaders listen and adopt the aspirations of the people they

lead.

James L. Huffman17 rejects trust law as unworkable and constitutional law as historically

unrelated. The author also rejects explanations rooted in judicial review theory and the police

15 Joseph L Sax, ‘Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’, in Michigan

Law Review, Volume 68, part 1

16 Supra4 page 830

17 James L. Huffman, "Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy " Issues in

Legal Scholarship, Joseph Sax and the Public Trust (2003): Article 6.

Also available http://www.bepress.com/ils/iss4/art6. Accessed on 21.7.2013

9

power. His conclusion is that the Public Trust Doctrine is best understood, both historically and

theoretically, as an aspect of property law, and that much of the modern public trust case law

cannot be justified on the basis of this understanding of the doctrine.

Professor Araiza18 who is in agreement with James L. Huffman begins by asking whether

public trust resources can be meaningfully analogized to such "discrete and insular minorities,"

for which heightened judicial protection is appropriate. He concludes that while it may be

theoretically possible to draw this analogy, a process-justified Public Trust Doctrine nevertheless

fails to provide principles limiting that which would otherwise be an extraordinarily broad scope

for judicial review. Moreover, environmental protection is a politically powerful rallying cry;

when combined with existing mechanisms for channelling that political power into

administrative action, this fact undermines the appropriateness of special judicial solicitude for

environmental conservation based on alleged defects in the government decision-making

process. Araiza consequently rejects a purely process-justified Public Trust Doctrine and instead

considers sources of a substantive political commitment to public trust preservation. He argues

that many state constitutions provide this commitment through provisions addressing

environmental protection. Professor Araiza concludes that many of these provisions, carefully

read, can provide the foundation for a Public Trust Doctrine that seeks not to second- guess

government decisions, but that merely attempts to ensure that environmental values are

appropriately considered in the decision-making process. This conclusion both gives effect to

these provisions, most of which have lain dormant since their enactment, and limits the judicial

18 William Araiza, "Democracy, Distrust, and the Public Trust: Process-based Constitutional Theory, the Public

Trust Doctrine, and the Search for a Substantive Environmental Value " Issues in Legal Scholarship, Joseph Sax and

the Public Trust (2003): Article 1.

Also available http://www.bepress.com/ils/iss4/art1 . accessed on 30.6.2013

10

role in areas in which the need for technical expertise and political accountability make judicial

policy making especially inappropriate.

However Moses Paul Sserwanga19 disagrees with the above two authors as according to him

whatever the motive, it’s our civic duty as citizens to remind our leaders that the constitutionally

established principle of public trust applies to all our national resources and public land. Our

leaders including the president have a legal obligation under the public trust doctrine to manage

national resources in a manner that doesn’t prejudice the interests of all Tanzanians. We concur

with Paul, and this duty can be enforced through demonstrations, peaceful strikes and litigation

(public interest litigation), inter alia.

Stuart L. Pimm’s20 idea of the Public Trust Doctrine is that state governments have to manage

natural resources for the benefits of their citizens.

According to Barnard S. Cohen21, in order that the great increase of public concern for our

environment maybe made an effective fore for protecting the environment, a viable legal theory

which can be used by private litigants is urgently needed

Charles F Wilkinson22 believes that the Public Trust Doctrine should be rooted in the

constitution and that states are strictly prohibited from abrogating the doctrine.23 In Tanzania,

19 Supra note 12

20 Stuart L. Pimm, Doris Duke Chair of Conservation Ecology. Nicholas School of the Environment and Earth

Sciences. Room A301 LSRC Building. Duke University.

Also available at www.nicholas.duke.edu/solutions/documents/PimmCVmedium. Accessed on 30.6.2013

21Barnard S. Cohen, The Constitution, The Public Trust Doctrine and the Environment, page 388

11

Article 9(c) of the 1977 Constitution expressly provides for the Public Trust Doctrine, however

the Article is not enforceable under any court of law, therefore the state has so right to go against

it. Therefore we concur with the Wilkinson assertion that the doctrine should be directly

enshrined in the constitution

George A Gould24 believes that the Public Trust Doctrine is rooted in sovereignty. To him, state

ownership of natural resources is an attribute of sovereignty that can only be abrogated by the

trust principle. The Sovereignty principle is rather an aging doctrine inapplicable in these modern

times where democracy is gripping the face of the earth. The Public Trust Doctrine requires that

men bend themselves together and delegate all reign authority to a man or a body of men whom

they contract to obey. There therefore exists a contractual relationship between the people and

the government.25 I disagree with George because in my opinion, there is no way the sovereign

will be willing to contract with the people because his word is final; sovereigns tend to think they

are above the law.

Like most authors discussed above, Godber W Tumushabe, Rose Mwebazze and Ronald

Naluwairo26 jointly contend that the Public Trust Doctrine is based on a fiduciary duty granted

22 Charles F. Wilkinson, “The Public Trust Doctrine in Public Land Law,” (1980) 14 U.C. Davis L. Rev. 269.

23 Supra at page 315

24 George A. Gould, Water Rights Systems, in Water Rights Of The Eastern United States 8-9 (Kenneth R. Wright

ed. 1998).

25 supra

26 Godber W Tumushabe , Rose Mwebaze, Ronald Naluwairo; sustainable utilizing our natural heritage,

12

to the state to manage natural resources. This duty is determined by the beneficiary communities

as per the common law

3.0 Method of study

The method that has been adopted for accomplishing the research paper was mainly desktop

based involving legal analysis of primary and secondary sources.

Primary sources included statutory provisions while secondary sources included text book and

unstructured interviews. Library oriented research comprised of data collection from specified as

well as generalised libraries within the country [Tanzania] for example, Ruaha University

(RUCO), Mkwawa University, the Iringa Regional library, The Iringa Municipal Office

(Environmental and Natural Resources Department.)

Consideration also has been given to data from various publications, text books and journals on

international law, as a reliable source of information and data basically on the Public Trust

Doctrine.

The internet also was used to access important information on the subject of research.

3.1 Chapter synopsis

This Paper consists of four chapters which shall have the following contents:

Kampala, ACODE policy research series No 4 of 2001

13

3.1.1 Chapter 1

This Chapter contains an introduction to the Public Trust Doctrine, which includes; an

introduction to the topic, a statement of the problem, the significance of study topic, objective of

study, scope of the study, method of the study, method of the study and a variety of the literature

on the topic as seen above.

3.1.2 Chapter 2

This chapter contains the historical development of the Public Trust Doctrine. This has been

through an analysis of the doctrine right from the pre-colonial time to date. This will be through

examining the various laws that provide for the public trust doctrine, for example, The 1977

Constitution of the United Republic of Tanzania and various Environmental legislation like; The

Environment Management Act (EMA of 2004), The Forest Act 2006, The Wildlife Management

Act of 2009, The Water Resource Management Act of 2009, The Mining Act of 2010, The

Petroleum (Exploration and Production) Act, CAP 328, The case law and international statutes;

and various material that domesticate the doctrine into the National system.

3.1.3 Chapter 3

This Chapter examined the challenges facing the application of the Public Trust Doctrine in

Tanzania. It began by giving credit to the government where it has endeavoured to carry out its

fiduciary duty under the doctrine within the jurisdiction, followed by the challenges facing the

implementation of the public trust doctrine in Tanzania, then a brief critical analysis of the

application of the doctrine and finally a conclusion of the chapter in general.

14

3.1.4 Chapter 4

This chapter contains the overall conclusion of the research with recommendations on how to

control the challenges facing the implementation of the Public Trust Doctrine in Tanzania.

15

CHAPTER TWO.

THE HISTORICAL DEVELOPMENT OF THE PUBLIC TRUST DOCTRINE.

2.0 Introduction

This chapter will discuss the historical development of the Public Trust Doctrine, its

domestication in Tanzania’s legislative system up to the 1977 Constitution. The research will

also include case law from Tanzania and other common law jurisdictions along with

international legal instruments.

2.1 Evolution of the public trust doctrine

The origins of the Public Trust Doctrine are traceable to Roman law concepts of common

property. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private

ownership; they were dedicated to the use of the public. This concept that tide and submerged

lands are unique and that the state holds them in trust for the people has endured throughout the

ages.

England in adopting much of the Roman law, recognised waters and shores as public in nature.

As commerce became important, so did the public interest in the shores. Eventually, the shores

came to be recognised as property owned by the king in trust for the public.27 Under English

common law, this principle evolved into the Public Trust Doctrine pursuant to which the

sovereign held the navigable waterways and submerged lands, not in a proprietary capacity, but

27 The public Trust Doctrine by Gary Overimer

16

rather “as trustee of a public trust for the benefit of the people” for uses such as commerce,

navigation and fishing.28

Under common law, the Public Trust Doctrine imposed a high fiduciary duty of care and

responsibility upon the state. This duty rested on the nature of the state and the beneficiary

communities.29

As early as 1865, The English House of Lords defined the concept of Public Trust more

explicitly as is now known in the common law. In the case of Gann V Free Fisher of White

stable30, it was held that;

“The bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea is by

law vested in the crown. By this ownership of the crown is for the benefit of the subject, and

cannot be used in any manner so as to derogate from, or interfere with the right of navigation,

which belong by law to the subject of the realm.”

The incorporation of the doctrine in English law may itself be traced in the Magna Carta.31

Paragraph 5 of the Magna Carta made reference to the guardianship of land. It extended the

guardianship “to houses, parks, fish ponds, tanks, mills and other things pertaining to land.

Property subject to the trust must not only be used for a public purpose, but it must be held

available for use by the general people.

28 www.slc.ca.gov/policy_statements/...trust/public_trust_doctrine.pdf accessed on 12.6.2013

29 Ibid page 24

30 11 English Reports(ER) 1305 (1865) HL

31 www.magnacarta.com accessed on 12.6.2013

17

King John was forced by the Magna Carta to relinquish private fishing rights granted by the

crown to certain worthies such as dukes, barons and earls32

The English monarchy added strength and recognition to the Public Trust Doctrine with the

signing of the Magna Carta in 1215. Changes in English common law enacted in 1641, and

additional modifications enacted by Colonial Ordinance in 1647,33 reinforced the Public Trust

Doctrine concept that government has an affirmative duty to administer, protect, manage and

conserve fish and wildlife; hence, government cannot relinquish its obligations to a popular vote

to establish administrative management, protection, and conservation practices for renewable

wildlife and marine resources. In other words, ballot measures cannot supersede governmental

(sovereign) rule.34 In 1892, courts declared that the "Sovereign Lands" of a state are held in trust

by the State for all present and future generations, and that such land may not be sold for

development incompatible with uses covered by the Public Trust Doctrine.35 The court set very

limited parameters within which the trust could deal with the trust property. It considered using,

managing, or disposing of trust property in a manner that would infringe upon the public an

abuse of a fiduciary relationship between the trustee and the beneficiary. Therefore, an alienation

32 Text of Magna Carta http://www .Fordhan.educ/halsall/source/magnacarta/html visited on 12/06/2013

33 Slade, David C. Esq. “The Public Trust Doctrine: A Gift From A Roman Emperor,” 12211 Roundtree Lane,

Bowie, Maryland, 20715, phone: (301) 464-3900. (Note: Some sources attribute the date to 533 A.D.)

34 For The Good of The People, Ed Owens, Chair, Citizens for Responsible Wildlife Management

P O Box 14245, Tumwater, WA 98511-4245, July 2001.

35 Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).

18

n of the resources held in trust could only be proper where the conveyance either promotes the

interest of the public or does not impair substantially the public interest in the remaining

property. This reaffirmed the House of Lord position in Gann-Vs-free fishers of Whites

tables,36 stated above.

The Public Trust Doctrine has been a very important tool in enforcing the debate of the global

commons. This debate refers to the management of global resources or areas that legally do not

belong to any nation.37 Global commons debate arose on the notion that certain resources are

essential for the survival of humanity and should be protested for the common interest. These

areas include the Antarctica, the high seas, Amazon forests or even outer space.38

2.1.0 International and regional instruments

The Public Trust Doctrine is provided for in a number of international and regional instruments.

International Instruments

2.1.1 The United Nations General Assembly Resolution39 on Permanent sovereignty over

natural resources passed on 14th December 1962 noted that the people and nations have a right to

permanent sovereignty over their natural resources. Nations have the right to use their resources

in the interest of the natural development and for the well-being of the state concerned.40

36 11 English Reports(ER) 1305 (1865) HL.

37 These areas include the globe, ocean and their resources , Antarctica, moon and other natural objects in space.

(From Microsoft Student with Encarta 2008)

38 Supra

39 Passed on 14th December 1962

40 Ibid page 645, paragraph 23.59.

19

2.1.2 Agenda 2141

Article 12(37) states that; Governments at the appropriate level, and with the support of the

relevant international and regional organizations, should Implement policies directed towards

improving land use, managing common lands appropriately, providing incentives to small

farmers and pastoralists, involving women and encouraging private investment in the

development of dry lands.42

2.1.3 The Stockholm summit43

It has a provision for referrals to Governments of Recommendations for Actions at the National

Level. This is evidence that this summit recognises the government as a trustee on behalf of the

citizens. According to this Summit, the UN now has a task to incorporate the views of citizen's

groups and NGOs, and build on bottom-up activism, at the same time as top-down governmental

decision-making.

Regional Instruments.

2.1.4 The African Charter of Human and People’s Rights affirms that the people have a right

to freely disposed of their wealth and natural resources, maintaining that,

“In no case shall a people be deprived” under Article 21 (1).

41 Agenda 21 on Managing Fragile Ecosystems: Combating Desertification and Drought

42 Article 12(37)(c)

43 Stockholm 1972 - United Nations Environment Programme (UNEP)

20

Article 21 (2) states that, in case of expropriation the dispose people shall have the right to the

lawful recovery of its property as well as to adequate compensation.”44

2.1.5African Convention on the Conservation of Nature and Natural Resources (1968)

The preamble of this convention states that;

“We, the Heads of State and Government of Independent African States, fully conscious

that soil, water, flora and fauna resources constitute a capital of vital importance to mankind;

Confirming, as we accepted upon declaring our adherence to the Charter of the Organization of

African Unity, that we know that it is our duty to harness the natural and human resources of our

Continent for the total advancement of our peoples in spheres of human endeavour."

This preamble is conclusive evidence that the government of the signatory states have agreed to

hold the natural resources of their individual states in trust for their citizens.

2.2.0 The Evolution of the Public Trust Doctrine in Tanzania’s Legal system.

The History of Public Trust in Tanzania can be traced back during the Colonial Era, were by the

doctrine was reflected in various domestic laws such as Land Ordinance of 1923. The British

Administration in Tanganyika placed the Tanganyika land as the public land. And in order to

protect the land, the Governor acted as the trustee of the land for the interest of the public45.

This concept raises some contradictions on the real meaning of the doctrine of the public trust.

How can the colonizers hold the land as the trustee on the behalf of the colonized person (s) As

44 Ibid paragraph 23.60

45 Section 4 of the Land Ordinance of 1923.

21

the whole country was under the British dominance, it was difficult for the Africans to occupy

land rather than working on them. The land and all of the natural resources were for the benefits

of the Minority Population such as Arabs, Europeans and few Africans (Chiefs and Sons of

Chiefs). Even though such population amount to public, but the indigenous Africans were not

subjected to public trust.

The land under British Rule was disposed under the consent of governor46. Currently it is the

same apply. The president holds the land as public as the trustee for the common good of the

citizen. The president also consents on the disposal of the land. The president may have the

officials, land officials indeed, to help him in exercising administrative powers over land47 and

other natural resources. Article 27 (1, 2,) provides for the safe guarding of the public in which it

entails the existence of public trust doctrine.

.2.2.1 The Public Trust Doctrine after colonial era up to date

the concept of Public Trust Doctrine, was clearly expressed by the first prime Minister of

Tanzania, Julius Kambarage Nyerere, when he was delivering his speech in Arusha, September

1961 during the Symposium on the Conservation of Nature and Natural Resources in Modern

Africa State, he declared that the wildlife natural resources are in the trust of the government and

his agencies, by saying that;

“In accepting the trusteeship of our wildlife we solemnly declare that we will do everything

in our power to make sure that our children’s grandchildren will be able to enjoy this rich and

precious inheritance”

46 Section 3 of the Land Ordinance.

47 Section 4 of the Land Act of 1999.

22

From this quotation it has been proved that the government of Tanzania since the colonial and

after colonial era, the government aimed at owned the whole land with its natural resources in

the trust of his citizen.

After independence in 1961, the doctrine found its way in national legislation and practice. This

was a result of Tanzania being one of the countries in the world with a lot of natural resources

which need to be conserved and managed for this generation and the coming generation to enjoy

them. Therefore the doctrine was enshrined in different legislation relating to the management

and conservation of the natural resources.

2.2.2 The constitution of The United Republic of Tanzania of 1977

Having consider the party of the Constitution of the United Republic of Tanzania which is not

binding and enforceable before any court of competent jurisdiction, the doctrine has also the

constitutional basis. Article 9 (1) (c) of the Constitution of the United Republic of Tanzania

places an obligation on the part of the state and its agencies

“… to ensure that the national resources and heritage are harnessed, preserved and applied

toward the common good…”

The public is also called upon by Article 27 of the Constitution to ensure that the natural

resources of the country are managed properly when it states:

“(1) every person is obliged to safeguard and protect the natural resources of the United

Republic, state property and all property jointly owned by the people…

(2) All persons shall by the law be required to safeguard state and communal property, to

23

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.”

2.2.3 The Environmental Management Act No.20 of 2004

This is an Act which provides for legal rules that seek to protect the environment, they provide

for natural resources management and conservation; they regulate land use, and prescribe

pollution control and waste management measures.

With regard to section 120 of this Act it in tells on the Public Trust Doctrine, it provides that;

“Public land means land entrusted to the president as trustee and includes general land or

privately occupied land…”

2.7.2 The Wildlife Conservation Act No 5 of 2009

This Act was introduced so as to repeal the Wildlife Conservation Act Cap 283. This Act is for

making a better provision for conservation, management, protection and sustainable utilisation of

wildlife and wildlife products.

In respect of this Act, the wildlife resources in Tanzania belong to the government irrespective of

whether they are on private or public land.

The Act provides for; the ownership of animals to be public property and remain vested in the

president as a trustee for and on behalf of Tanzania48.

48 Section 4(1) of The Wildlife Conservation Act, 2009

24

2.7.3 Water resources Management Act No 11 of 2009

The Water Resources Management Act is the Act to provide for institutional and legal

framework for sustainable management and development of water resources. It outline principles

for water resources management, to provide for the prevention and control of water pollution, to

provide for participation of stakeholders and the general public in implementation of the

National Water Policy, repeal of Water Utilization ( Control and Regulation) Act and to provide

for related matters49.

As in section 10 (1) provides for;

“The water resources in mainland Tanzania to be public water and vested in president as the

trustee for and on behalf of citizens”

Further in subsection(2) 10, provides for;

“The president as a trustee through various designated institutions, manage the water resources

for the benefit of the people of mainland Tanzania”

Therefore through these provisions it is clearly shown that The Public Trust Doctrine has been

illustrated in the law relating to water resources management.

2.7.3 The Land Act [Cap113 R.E 2002]

Section 4 of the Act, tells for the Public Trust Doctrine. The section provides that;

49 Preamble of the Water Resources Management Act No.11of 2009

25

“All public lands and all rights over the same are hereby declared to be under the control

and subject to the disposition of the President and shall be held and administered for the

use and common benefit, direct or indirect, of the natives of Tanzania…”

2.7.4 The Mining Act No.14 of 2010

This Act consolidates the laws that govern mines and minerals in Tanzania.

Sections 5 and 6 provides that, entire property and control over minerals on, in or under the

land to which this Act applies is vested in the United Republic, and no person shall, on or in any

land to which this Act applies, prospect for minerals or carry on mining operations except under

the authority of a Mineral Right granted, or deemed to have been granted, under this Act. This

provision explains on the Doctrine of Public Trust.

2.7.5 The Petroleum (Exploration and Production) Act, CAP 328.

Section 4 of the Act provide that, “the entire property in and control over petroleum in any land

to which this Act applies are vested in the United Republic; but without prejudice to any right to

explore for or produce petroleum granted, conferred, acquired or saved by or under this Act”.

The Act further stated that, no person shall carry on in any land to which this Act applies any

operations relating to the exploration or production of petroleum except under and in accordance

with a license granted, conferred, acquired or saved by or under this Act. A person who

contravenes with the provision shall be guilty of an offence and liable on conviction, in the case

of an individual, to a fine not exceeding ten thousand shillings or to imprisonment for a term not

exceeding two years, or to both that fine and imprisonment. In the case of a company or a

corporation, to a fine not exceeding one hundred thousand shillings.

26

Section 11 of Act also prohibits a Public Officer to hold any license or having interest in license

or a share in any company or corporation that deal with the exploration and production of the

petroleum. Even a member of the family of the Public Officer must not gain any interest from

such company. This express that, as the public officer acted on the behalf of the president as the

trustee of the public land for the citizen, and then he must not be a beneficiary.

2.3.8 The Forest Act No.14 of 200250

In the forest Act the doctrine has not directly stated however the Act does not leave the matter

plain that is untouched. In Section (69(1) of this Act Provides only that;

“All biological resources and their intangible products, whether naturally occurring or

naturalised within forests including genetic resources belongs to the government in accordance

with Article 27 of the Constitution and shall be conserved and utilised for the people of

Tanzania…”

Therefore this shows that though the Act does not express the concept of Public Trust Doctrine

directly, but through this provision it provides for the forest resources to belong to the

government and all the benefits from the resources should be shared with the public.

Either under the section 3 of the Forest Act51 it has stated incorporate clear the substantial part of

the public trust doctrine that is public by contending that the main objective of the Act is to

encourage and facilitate the active participation of the citizens in the sustainable planning,

50 The Forest Act, No.14 of 2002

51 Section 3 of the Forest Act no. 14 of 2002

27

management, use and conservation of the forest resources through the development of the

individual and community right52 to use and manage forest resources.53

Also to ensure the ecosystem stability through conservation of forest biodiversity, water

catchments and soil fertility.

Furthermore the Act enshrine the most important party that is to delegate responsibility for

management of forest resources to the lowest possible level of local management consistent with

furtherance of national policy as provided under section 3(d)54

Furthermore the Forest Act seek to ensure sustainable supply of forest products and services by

maintaining sufficient forest area under efficient, effective and economical management55 and to

facilitate greater public awareness of the cultural, economic and social benefits for conserving

and increasing sustainable forest cover by developing programs in training, research and public

participation56

2.7.6 Case laws

In the case of Lohay Akonay and Joseph Lohay vs. Attorney General57,

It was stated that, the president holds public land in trust for the indigenous inhabitants of that

land. From this legal position, two important things were given, firstly as trustee of public land,

52 The right include all the right acquired from customary law or from the Forest Act No14 of 2002

53 Section 3(b) of the Forest Act, supra note 50

54 Supra note 50

55 Section 3(e) supra note 50

56 Section 3(h) ibid

57 [ 1995 TLR 80 ] ( AC)

28

the president’s power is limited in that he cannot deal with the public land in a manner in which

he wishes or which is determined to the beneficiaries of public land. Secondly as beneficiary the

president cannot be the beneficiary of the public land in other words is excluded from the

beneficial interest.

The Supreme Court of India in the case of M.C Mehta vs. Kamal Nath and others58 stated the

following on the public trust doctrine Our legal system-based on English common law includes

the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural

resources, which are by nature meant for public use and enjoyment. Public at large is the

beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands The State

as a trustee is under a legal duty to protect the natural resources. These resources meant for

public use cannot be converted into private ownership. The court also ruled that there is no any

justifiable reason to rule out the application of the public trust doctrine in all ecosystems in India.

In the case of Gann Vs Free Fisher of Whitestable59, it was held that;

“The bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea is by

law vested in the crown. By this ownership of the crown is for the benefit of the subject, and

cannot be used in any manner so as to derogate from, or interfere with the right of navigation,

which belong by law to the subject of the realm.”

58 No.182 of 1996 supreme court of India.

59 11 English Reports(ER) 1305 (1865) HL

29

CONCLUSION.

From the above discussion, it’s apparent that just as with other forms of common law, Tanzania

has evolved its public trust doctrines in light of the particular histories. It evident that the public

trust doctrine which is now part of Tanzania’s laws can be traced as far back as the pre-colonial

days. The State’s role as protector of the public trust is however a difficult one, this is because, in

order to secure the goals of the public trust doctrine, the State must consider the interests of

everyone.60 The state therefore faces a lot of challenges in protecting the natural resources of

Tanzania as will be discussed in the next chapter (Three) in detail.

60 A Criticism of the Public Trust Doctrine in South Carolina by Prof. Kim Diana Connolly in an Environmental

Advocacy Seminar page 1 of the report.

30

CHAPTER THREE.

CHALLENGES FACING THE APPLICATION OF THE PUBLIC TRUST DOCTRINE

IN TANZANIA.

The Public Trust Doctrine as a tool of environmental management is intended to ensure that

development activities and exploitation of natural resources for different purposes are

harmonized with the need to conserve the environment on behalf of the people of Tanzania. In

1994 the National Environmental Management Council (NEMC) adopted the National

Environment Action Plan Policy. One of the outcomes of the NEMC was the formulation of the

National Environment Action Plan Policy (NEAP) of 1994. The overall goal of the NEAP is

sustainable social and economic development which maintains or enhances environmental

quality and resource productivity on a long term-basis that meets the needs of the present and

future generation of the people of Tanzania61.

Also in 1995 the NEMC adopted the National Conservation Strategy for Sustainable

Development (NCSSD) which is a framework for integrating development and conservation, in

the knowledge that rational resource use will lead to sustainable development62. In 1997 the

Tanzania government had published the National Environment Policy (NEP)63 which addresses

the concept of Public Trust Doctrine. The government of Tanzania has embarked on the

61 the National Environment Action Plan Policy (NEAP) of 1994

62 The National Conservation Strategy for Sustainable Development Policy Statement no. 1.2.1

63 National Environmental Policy of 1997, policy statement, which contending that, the objective of the policy is to

raise public awareness and understanding of the essential linkages between environment and development, and to

promote individual and community participation in environmental action

31

publication of national state of environment reports assist in providing the much needed

information for planning purposes, resource allocation, national and institutional budgetary

processes. Mainstreaming environment into the National Strategy for Growth and Reduction of

Poverty (MKUKUTA); mainstreaming environment into sectoral legislation, policies and

strategies; and ratifying various regional and Multilateral Environmental Agreements.64 The

EMA provided a framework for addressing gaps in environment management as well as a

strategy for integrating environment into the national socio-economic development and to

integrate public in matter pertaining to the environment.65Also as explained in the previous

chapter, the government of Tanzania has incorporated environmental protection laws in its

statutes and laws.

However, despite the efforts of the government, the above enlisted challenges of the Public

Trust Doctrine both at national and district level do exist as explained below in detail.

3.1 Challenges facing the application of the Public Trust Doctrine in Tanzania.

The state under the public trust owes a duty to its citizens to hold the country’s natural resourced

for and on behalf of the people of Tanzania, however in carrying out this fiduciary duty, it faces

a number of challenges as discussed below.

64Tanzania National Report for the United Nations Conference on Sustainable Development, Rio+20, April, 2012,

page no.4

65The Preamble of the Environmental Management Act, no.20 of 2004

32

3.1.1 Population size.

In the current era, Tanzania is faced with the Challenge of a rapidly growing population whereby

in the current census Tanzania has almost forty five million of total population (44,928,923)66,

thus, land resources have been chronically over-utilized and inefficiently managed. In the past,

the Government has demonstrated continued and selective arbitrariness, inefficiency, and lack of

transparency in the exercise of trustee powers over Public land, government land, and Public

Trust natural resources. Population growth and economic development encroach on forests,

wetlands, and prime agricultural areas, threatening biodiversity and raising serious concerns

about air quality and food and water security,67 and as living arrangements shift from large

extended families to small nuclear families, the number of households in Tanzania will increase

much more rapidly than population numbers alone would imply. In advance overgrazing and

over collection of firewood which are often a function of growing population is degrading 14%

of the world remain large areas of virgin forest.68 Deforestation created by the demand for forest

products tracks closely with rising per capital consumption in recent decades, furthermore the

use of paper and paperboard per person has doubled (or nearly tripled) today.69 The loss of the

forest area lead to the decline of the forest service, this include habitat for wildlife, carbon

storage which is the key to regulate climate change and erosion control, provision of water across

66 2012 Population and Housing Census ,Population Distribution by Administrative Areas in Tanzania,

available in http://www.nbs.go.tz/sensa/PDF/Census%20General%20Report%20 Accessed on 26.7.2013

67An Article on Population and Environmental Challenges in Asia.

68 Annual Edition Social Problems 03/04, 31st edition, at page 192

69 Ibid

33

rainy and dry seasons70, example in Tanzania in Kilosa in Morogoro, Mpwapwa district in

Dodoma Nandambi Village in Lindi region71. Therefore as the population increases, and thus

more demands are made on resources, wetlands maybe further destroyed in the name of

development. Development should be avoided if the cost is environmental degradation.72

Furthermore the population growth lead to the scarcity of water,73 hence creates the problem in

the management of the environment as well as the Public Trust Doctrine.

All of these changes have implication for resource use and pressure on the environment.

Tanzania’s high human density means that most protected areas have “hard edged” boundaries

and people and wildlife come into frequent contact a big problem when animals raid crops or

people illegally hunt them for meat or remove trees to produce charcoal, this was evidenced

when the wetlands found in Morogoro when the wetland area had been characterised with

intrusion of large number of pastoralist with livestock due to the lack of pasture for their animal.

This however was temporally solved by the department responsible on the preservation and

protection of wetlands in Morogoro.

The relatively lacks of effective means of controlling the human and wildlife conflict in the

parks, also threatens the viability of small wildlife populations. However the Tanzania’s

government has limited capabilities to monitor wildlife and the threats they face, regulate the

tourism and protect the environment. Hence population growth is a very big challenge to the

70 ibid

71 http://www.tfcg.org/pdf/TFCG%20REDD%20Poster%20Presentation%20SCB%20ATBC%20June%202011.pdf .

accessed on 25.7.2013

72 Annual Edition Social Problems 03/04, 31st edition, at page 192

73 Annual Edition Social Problems 03/04, 31st edition, at page 191

34

Public Trust Doctrine because the government’s hands are tied in as far as providing a conducive

environment for its growing population74.

3.1.2 Lack of public oversight and participation

The Public Trust Doctrine demands that the government in the discharge of its public trust duty

in the management of naturals resources should so for the benefit of the people of Tanzania and

not otherwise. In performing this duty it must involve the public in decisions pertaining to

natural resources management. The public cannot do so if it has no access to information and if it

is not well informed. The public role guaranteed by Article 27 of the Constitution75, which

demands the citizens of Tanzania to ensure that the country’s natural resources are managed

well. Unfortunately, the implementing legislation in Tanzania does not recognize the role of the

public in the management of natural resources. The legal regime inhibits the public oversight by

creating bureaucratic red-tape in accessing government documents and also by going as far as

criminalizing their possession without its approval. Under the National Security Act76

government documents are classified by being stamped “Confidential”. Once so stamped they

are only accessible to authorized officers, which act as a hindrances toward public participation

on the issue of public interest.

That is not the only law that curtails the role of the public in ensuring that the country’s natural

resources are managed well. The Newspapers Act77 prohibits the publishing of any information

74 2012 Population and Housing Census ,Population Distribution by Administrative Areas in Tanzania, at page i

75 The constitution of United Republic of Tanzania of 1977 as amended from time to time

76 Section 4 of National Security Act [Cap47 R.E 2002]

77 The Newspapers Act [Cap229 R.E 2002]

35

that intends to show that the government has been misled or mistaken in any of its measures;

points out errors or defects in the government, constitution, or any other law; or attempts to

persuade inhabitants to procure by any lawful means the alteration in Tanzania. Publishing of

any of the above prohibited information exposes one to sedition charges punishable with two

years’ imprisonment. For all intent and purposes this provision is so draconian as it goes contrary

to Article 18 of the Constitution that guarantees freedom of expression. Since it has not been so

declared by the Judiciary it has been used by the government to harass the public and ultimately

muzzle it. This legal regime shields government officials from the public oversight and scrutiny

with catastrophic effects on natural resources management. As if that was not enough the legal

regime in Tanzania does not guarantee the public access to natural resources78. The public is

excluded from these resources either by wholesale eviction from the land to other places which

are infertile or by imposing total ban in entering certain areas on the pretext of national parks or

game reserve and banning traditional methods of harnessing natural resources.

The tension has not been the only result of this neglect but wildlife resources have suffered

tremendously as they are in a decline to an alarming degree. In 1995 the government

commissioned the Wildlife Sector Review Task Force to review the overall performance of the

sector and recommend ways to improve. The Task Force found that illegal hunting has led to the

almost total elimination of the black population, loss of two third of elephant population and

increasing losses of buffaloes. As if that was not enough it stated that the protected areas like the

78 Rugemeleza Nshala, , Management of Natural Resources in Tanzania: Is the Public Trust Doctrine of Any

Relevance ?, available at

http://www.google.co.tz/#sclient=psyab&q=MTNRE%2C+1995:21%2C+Nshala+1999&oq=MTNRE%2C+1995:21

%2C+Nshala+1999&gs_l=serp.12...670266.677205.3.678865.46.10.6.0.0.8.1097.6593.53j5j1.9.0....0...1c.1.19.serp.

mR5JGKMjee8&psj=1&bav=on.2,or.r_qf.&fp=e3fa9868b6fac338&biw=1280&bih=596 Accessed on 05.7.2013

36

national parks and game reserves have only partially fulfilled their objectives of conserving

Tanzania’s biological diversity.79 Therefore lack of public participation on the matter of public

interest trigger challenges on the application of the doctrine in Tanzania.

3.1.3 Insufficient capacity of law enforcers and Legislative problems.

Another enforcement challenge includes insufficient capacity of law enforcers, both in terms of

environmental law and management expertise and equipment and facilitation, thereby

underscoring the importance of continuous training and capacity building; inconsistent political

positions and statements on the environment, especially during election undermine the integrity

of the environment. That notwithstanding, enforcement measures have been undertaken

including eviction of encroachers from wetlands, forest reserves and other protected areas,

confiscation of equipment used for illegal hunting and arrest and prosecution of suspects, also

confiscation of the government trophies as well as destruction of the tools used in the. The

challenge is in increasing the pursuit of both civil and criminal sanctions for environmental

violations, despite the fact that the inclusion of the said provision which incorporate civil and

criminal sanction80. However this being one part of environmental sector, the other party of

biodiversity such as Wetland management needs effective legislation, which takes into account

the diverse nature of wetlands and is supported by effective enforcement and resources. This

legislation must take into account the needs of wetlands and the requirement of all the sectors

that use them.81

79Supra note.

80 Environmental management Act of 2004, Section 192 and 1st schedule of the Environmental Management Act of

2004 at page 151

81 Bakobi. B.L.M, Conservation of wetlands of Tanzania

37

3.1.4 Inadequate funding in the Environment sector.

Lower priority is often given to environmental issues. Governments frequently lack the financial

resources necessary to effectively develop, implement, and enforce environmental laws and

policies. Thus, for example, the World Bank provides practically all the funding for Tanzania’s

National Environment Management Council in the 1990s and 2000s. As a result, governmental

agencies often lack professional personnel in the environment sector due to financial constraints.

Many government environmental institutions are designed to coordinate efforts between the

various line agencies and ministries. These lead agencies, however, usually have priorities that

frequently are at odds with environmental protection.82 Lack of adequate funding is therefore a

crucial bottleneck to access to justice83 in the environmental sector.

3.1.5 Economic and industrial development.

This economic and industrial development is inevitably accompanied by changing patterns of

consumption and economic growth. The industrial development is an inevitable move for any

developing country.

Therefore great many environmental problems stem from the organization, mode of production

and consumption impacts of industrial societies. Broadly speaking, the techno-scientific basis of

these societies produces two streams of impacts in the magnitude of its use and consumption of

resources, and the production of vast quantities of pollutants and dangerous technologies - both

of which have harmed and debilitated the non-human environment and humans

82 John D. A Catherine T., Handbook On Environmental Law In Uganda, Volume 2, 2nd Edition 2005, The

Macarthur Foundation, Page 5

83 Supra note 19

38

themselves.84This economic and industrial development is inevitably accompanied by changing

patterns of consumption and economic growth. The industrial development is an inevitable move

for any developing country. The Supreme Court of India In the case of MC Mehta V Umar of

Indian and others85noted that;

“Man is both creative and moulders of his environment which gives him physical sustenance and

affords him the opportunity for intellectual, moral, social and spiritual growth. In the long tortous

evolution of the human race on this planet, a stage has been reached when rapid acceleration of

science and technology, man has acquired the power to transform his environment in countless

ways and on an unprecedented scale.”

Today, the total number of cars, trucks, and buses in Tanzania is doubling every year, causing

more fuel consumption, air pollution which in turn causes the problem to the other party of the

environment, traffic jams, and demands for road construction often at the expense of prime

agricultural land. This is the clear picture that in the next 10 years, the number of motor vehicles

is projected to increase. Despite its misgivings on the environment, Industrialisation is a

necessary evil. The government in a move to foster economic development and attract foreign

investors has continued to irregularly change land use of many protected areas for commercial

purposes for instance, Serous Game Reserve the Tanzania government requested UNESCO for

minor boundary change of the Game Reserve Area for extraction of the Uranium by the Russia

ARMZ and Canadian Uranium One86. This is a challenge because the government of Tanzania is

84Critical Environmental Issues Of The 21st Century, Third World Network Briefing Paper No.2 For Wssd Prep

Com Ii

85 Air 1988 Supreme Court 1037

86 Available in http://www.uranium-network.org/index.php/africalink/tanzania/253-press-release-re-world accessed

on 01.7.2013

39

faced with a conflicting loyalty of either preserving the environment or jeopardising it but for the

good of the nation by encouraging investment in order to provide employment opportunities

hence better standards of living.

3. 1. 6 High dependence on fuel wood for cooking.

Tanzania is characterised with continued loss of forest cover due to human activities such as fuel

wood collection. Electricity, coal as well as gas, though available in some areas in the country, it

has not replaced fuel wood as an energy source. Willingness to switch to electricity is reduced

due to factors like price which is high and unaffordable by most of poor family in Tanzania. In

addition to price, non-price factors such as voltage and outage frequency significantly affect the

demand.87 Also Petroleum-based fuels are still too expensive to use and the renewable still

require too much of a capital investment for the majority of the population.88 The numbers who

use this form of energy for cooking and heating is estimated my some sources to be as high

Percent of households in some areas. However such dependence leads to deforestation. Therefore

there is a challenge of dependence on wood fuel which leads to the deforestation, a vice that

leads to environmental degradation. This makes it hard for the government of Tanzania to carry

out its fiduciary duty under the Public Trust Doctrine to protect forest cover on behalf of the

people of Tanzania, because the same people depend on that natural resource (Forests) for wood

fuel.

3.1.7 Misinterpretation of statutory provisions on the public trust doctrine.

87Modelling the choice to switch from fuel wood to electricity by L An - 2002

Available at http://www.sciencedirect.com/science?. Accessed on 30.6.2013

88http://www.bbc.co.uk/news/business-21547684 accessed on 30.6.2013

40

In Uganda, the statutory provisions on the Public Trust Doctrine have been misinterpreted on

many occasions, which had often posed a challenge in litigation. Justice Oliver Holmes

demonstrated the difficulty in interpretation of statutes in the case of Towne V Eismer89, that;

“A word is not a crystal, transparent and unchanged, it is the skill of a living though and may

vary greatly in the colour and content according to the circumstances and the time in which it is

used.”

Tanzania like any other African countries has been faced with the tendency of high government

official misinterpret the doctrine in a manner that they take the most advantage benefits to enrich

themselves. The law states that on the grant of a natural resource area, the original land use

should be maintained. This was illustrated in the case of Acode v Attoney General90 where

court noted that much as the law resists granting of leases and alienation of important natural

resources such as forests, the granting of these permits, licenses and concession,91 is allowable

provided that there is no change in land use. In case of conveyance, the interest of the people

must be in equal terms in the conveyance. This was pointed out in the case of Illinois Central

Rail Road V Illinois92, where court note that conveyance is permissible, so long as it furthers the

public trust interests and that the control of the state for the purposes of the trust is not lost. The

state should therefore make sure that whatever environmental decisions it makes, they should be

to the reasonable the interests of the people of Tanzania, as was noted in the case of Solothurn V

89 (1918) 254 US 418, 425

90Miscellaneous Cause No. 0100/2004.

91 This includes granting permits for harvesting timber, eco-tourism, collaborative management and other activities.

92 I46 US (1892)

41

Aargau 93that viable factors should be considered before reckless decisions are made. It is worth

drawing a distinction between public interest in the reality of protecting the people’s interest and

a grant that services such as increasing tax revenue or because the guarantee might put the

property to a commercial use.94 This has significantly affected the advancement of the Public

Trust Doctrine.

Despite the above challenges, we strongly believe that the state and the general public

administration is bedevilled by corruption, is inadequately resourced, and is performing very

poorly in service delivery. As performance standards are eroded, the public is slowly losing

confidence in the entire administration system, which is increasingly becoming moribund and

dysfunctional. We find we have become a politicking society where everything is centred on

political hysteria as opposed to, for example, solutions to poverty that continues to dehumanise

our people. This irresponsibility is hindering positive political and social development resulting

in the sacred public trust being relegated to the dustbin. The basic relationship between

corruption and natural resources is twofold. Firstly, the presence of natural resource endowments

may cause corruption. The existence of appropriable resource revenues, for which various social

groups may vie, can result in a high level of rent-seeking behaviour. Secondly, corruption may

occur within Natural Resource Management (NRM) systems themselves, leading to the sub-

optimal use of these resources and to poor development outcomes in terms of economic growth

and/or poverty reduction. The level of corruption within NRM systems is a product not only of

the resource endowments at stake, but also of the institutional arrangements in place to govern

their use.

93 Switzerland Bundesgericht (Federal Tribunal) 1 Nov 2000

94 Air 1988 Supreme Court 1037

42

By devising means to relieve pressure and competition over scarce natural resources, such an

objective would not be elusive to attain if natural resource management was premised on a

policy paradigm emphasizing sustainable and productive natural resource use and development.

However Tanzania has adopted a lot of policy which emphasize the same but they are seemly to

be only a paper decollation or only presented in writing but practised otherwise.

3.1.8 CONCLUSION.

From the above discussion, it is right to conclude that despite the fundamental challenges

enlisted above, the Public Trust Doctrine is defiled by poor administrative decisions which is

characterised with the high level of corruption, hence very poor service delivery in the states’

execution of its fiduciary duty to the general public.

43

CHAPTER FOUR.

CONCLUSION AND RECOMMENDATIONS.

4.1 Introduction.

This chapter will discuss a final conclusion of the overall research followed by the

recommendations to the challenges facing the implementation of the Public Trust Doctrine in

Tanzania. Right from the introduction, to the history and the challenges affecting the application

of the Public Trust Doctrine, we have noted that the public trust doctrine is a vital tool of natural

resource management and public in Tanzania. Therefore, from this research, we have come up

with a number of conclusions and recommendations as examined below.

To arrive at my overall conclusions and final recommendations, we will analyse this topic from

two standpoints: the political and institutional perspective and the institutional capacity of the

government and Local governments in environmental management. Below are the conclusions

and recommendations.

4.1.1 Conclusion

Although the Public Trust Doctrine is having a constitutional basis in Tanzania, its presence is

not reflected in practice in various pieces of legislation relating to natural resources management.

The great discretionary powers given to government officials entrusted with natural resources

management in Tanzania derogates from whole import of the Public Trust Doctrine. These

powers have inculcated in the minds of government officials that the government is the owner

and not the trustee of natural resources. This has made these officials to become not friendly to

the plight of this resource dependent country.

44

Entrenching the Public Trust Doctrine together with sound natural resources management

principles in natural resources regime in the country cannot be further postponed. The doctrine

and the principles of transparency, accountability, limited powers, access to information and

public participation will ensure that Tanzania’s natural resources are managed assiduously as

demanded by Article 27 of the United Republic of Tanzania Constitution. However the

government has been like playing games with its people because as the provision of the

constitution which are very crucial in illustrating the public trust doctrine have been incorporated

in the part which in fact cannot be enforced before a court of law this is evidenced by the clear

words as shown herein below:

Worse enough the Constitution of the United Republic of Tanzania on one hand gives the right to

the public that is the freedom of expression which would be the best tool for public to participate

fully in the matter concerning the public trust in general by challenging the decision of those who

have been entrusted with those resources on behalf of the people and conducting the public

forum of which people will air the views on matter pertaining to the resources, therefore

participate in the conservation of natural resource as demanded by very provision of Article27 of

the constitution but the government have been very anxious controlling the freedom of

expression as illustrated in above chapter that is through the National Security Act95 and The

Newspapers Act96 which prohibit the same.

95 Section 4 of National Security Act [Cap47 R.E 2002]

96 The Newspapers Act [Cap229 R.E 2002]

45

4.1.2 Recommendations

Major amendments of natural resources laws in Tanzania must be undertaken so as to entrench

into these laws basic natural resources management principles and the removal of discretionary

powers currently enjoyed by the natural resources management officials. These principles

include public participation and accountability, environmental impact assessment, mandatory

scientific based quota setting system, transparency, checks and balances and access to

information.

The Public Trust Doctrine needs also to be expressly entrenched in each legislation and

pertaining to natural resources management in Tanzania especially in the up-coming

constitution which is in the process of being made. It must be clearly and spelt out the natural

resources are held by the government in trust and for the benefit of the people of Tanzania and to

which the government is accountable to. Therefore the public should be involved in decisions

touching on natural resources management and its access to information on natural resources

must be guaranteed and simplified.

The members of the public right to challenge any government decisions on natural resources

management must guaranteed. This means legal standing should be given to every Tanzanian

and non- governmental organizations. This is important in as it will enable enlightened members

of the public to come in the aid of the poor and in any part of the country to challenge any

decision that they think to be contrary to the interest of the nation, the public or the environment.

46

The government has to cherish and embrace the Public Trust Doctrine, and sees that they are the

trustee only of the natural resources and not the owner of the natural resources97.

All in all the government of Tanzania as a trustee of the natural resources has the fundamental

duty, that of having a duty of loyalty, the obligation to act solely in the interest of the

beneficiaries, All in all the trustee has a duty to use care and skill to preserve the trust property.

97 Supra note. 79

47

BIBLIOGRAPHY

STATUTES

1. Constitution of United Republic of Tanzania of 1977

2. Environment Management Act No.20 of 2004

3. The Forest Act No.14 of 2002

4. The Mining Act No.14 of 2010

5. National Security Act [Cap47 R.E 2002]

6. The Newspapers Act [Cap229 R.E 2002]

7. The Petroleum (Exploration and Production) Act [Cap 328 R.E 2002]

8. The Wild life Management Act no.5 of 2009

9. The Water Resource Management Act No.11 of 2009

BOOKS

1. Barnard S. Cohen, The Constitution, The Public Trust Doctrine and the Environment,

2. Charles F. Wilkinson, “The Public Trust Doctrine in Public Land Law,” (1980) 14 U.C. Davis

L.

3. George A. Gould, Water Rights Systems, in Water Rights Of The Eastern United States 8-9

(Kenneth R. Wright ed. 1998).

48

4. Hand book on environmental Law in Uganda

5. Joseph L Sax, ‘Public Trust Doctrine in Natural Resources Law: Effective Judicial

Intervention’, in Michigan

6. Law Review, Volume 68, part 1

7. Professor Joseph L Sax, “Environmental Regulations, ” 3rd Edition, Aspen, publishers, (2000)

Gaithersburg. New York

8. Stuart L. Pimm, Doris Duke Chair of Conservation Ecology. Nicholas School of the

Environment and Earth Sciences. Room A301 LSRC Building. Duke University

ARTICLES AND JOURNALS

1. A journal by Moses Paul Sserwanga

2. An Article on Population and Environmental Challenges in Asia.

3. Annual Edition Social Problems 03/04, 31st edition

4. Bakobi. B.L.M, Conservation of wetlands of Tanzania

5. Critical Environmental Issues Of The 21st Century, Third World Network Briefing Paper

No.2 For Wssd Prep Com Ii

6. J. Razzaque, 'Case Law Analysis: Application of Public Trust Doctrine in Indian

Environmental Cases' (2001) Journal of Environmental Law, Vol. 13

49

7. James L. Huffman, "Fish Out of Water: The Public Trust Doctrine in a Constitutional

Democracy " Issues in Legal Scholarship

8. Management of Natural Resources in Tanzania: Is the Public Trust Doctrine of Any

Relevance ?, Rugemeleza Nshala

9. Modelling the choice to switch from fuel wood to electricityby L An - 2002

10. MTNRE, 1995:21, Nshala 1999.

11. Ryan, Erin, Public trust and distrust: the theoretical implications of the Public Trust

Doctrine for natural resource management,Environmental Law

12. William Araiza, "Democracy, Distrust, and the Public Trust: Process-based

Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive

Environmental Value " Issues in Legal Scholarship, Joseph Sax and the Public Trust (2003)

WEBSITES.

1. http://en.wikipedia.org/wiki/publictrust

2. http://dlcvm.dlib.indiana.edu/archive/00000317/nshalar042400.pdfconference

3. http://msserwanga.blogspot.com/search?q=the+public+trust+doctrine

4. http://www.accessmylibrary.com/article-1G1-75162661/public-trust-and-distrust.html

5. http://www.bbc.co.uk/news/business-21547684

6. http://www.bepress.com/ils/iss4/art6.

50

7. http://www.bepress.com/ils/iss4/art1

8. http://www.uranium-network.org/index.php/africalink/tanzania/253-press-release-re-world

9. http://www.google.co.tz/#sclient=psyab&q=MTNRE%2C+1995:21%2C+Nshala+1999&oq=

MTNRE%2C+1995:21%2C+Nshala+1999&gs_l=serp.12...670266.677205.3.678865.46.10.6

.0.0.8.1097.6593.53j5j1.9.0....0...1c.1.19.serp.mR5JGKMjee8&psj=1&bav=on.2,or.r_qf.&fp

=e3fa9868b6fac338&biw=1280&bih=596

10. http://msserwanga.blogspot.com/search?q=the+public+trust+doctrine

11. http://www.nbs.go.tz/sensa/PDF/Census%20General%20Report%20

12. http://www.tfcg.org/pdf/TFCG%20REDD%20Poster%20Presentation%20SCB%20ATBC%

20June%202011.pdf

13. http://www.wri.org/property-rights-

africa/wriTest_Tanzania//documents/Tanzania_LessonBrief_4.pdf

14. www.nicholas.duke.edu/solutions/documents/PimmCVmedium

LIST OF CASES

1. Acode v Attoney General Miscellaneous, Case No. 0100/2004.

2. Illinois Central Rail Road V Illinois, I46 US (1892)

3. Lohay Akonay and Joseph Lohay vs. Attorney General [ 1995 TLR 80 ] ( AC)

51

4. M.C . Metha v kamal Nath and others (Writ petition [c] No.182 of 1996 supreme court of

India.)

5. Solothurn V Aargau, Switzerland Bundesgericht (Federal Tribunal) 1 Nov 2000

6. Towne V Eismer (1918) 254 US 418, 425

POLICY

1. Godber W Tumushabe , Rose Mwebaze, Ronald Naluwairo; sustainable utilizing our

natural heritage, Kampala, ACODE policy research series No 4 of 2001

2. The national Environmental Policy of 1997

3. The Tanzania National Environment Action Plan Policy of 1994

4. The Tanzania National Conservation Strategy for Sustainable Development Policy of

1995

5. The Tanzania National Strategy for Growth and Reduction of Poverty

6. Tanzania Wildlife Policy of 1998

REPORT

1. A Criticism of the Public Trust Doctrine in South Carolina by Prof. Kim Diana Connolly

in an Environmental Advocacy Seminar

2. Tanzania National Report for the United Nations Conference on Sustainable

Development, Rio+20, April, 2012

52

3. Population and Housing Census ,Population Distribution by Administrative Areas in

Tanzania, 2012

INTERNATIONAL INSTRUMENTS.

1. Agenda 21.

2. The Stockholm summit.

3. The United Nations General Assembly Resolution.

4. The 1992 Rio Declaration.

5. The 1998 United Nations Economic Commission for Europe Convention

6. The Inter-American Strategy for the Promotion of Public Participation in Decision

making for Sustainable Development

7.

REGIONAL INSTRUMENTS.

1. African Convention on the Conservation of Nature and Natural Resources (1968)

2. The African Charter of Human and People’s Rights of 1986