There has been a substantial international influence in Tanzanian Forest law. Firstly, State forest reserves were established by colonial powers, demarcating and alienating forests from customary control. Secondly, forest laws have been developed and implemented by reference to international treaties, conventions and agreements; and thirdly, international donor organisations have assisted in supporting both the creation and implementation of forest policy. Historical contingency has also played a major role in development of Tanzanian forest law. In the last one hundred years or so Tanzania has undergone three major changes of administration, each leaving a legacy of law, policy and land use. Acquisition of the State forest estate has been progressive. Forest reserves gazetted under the German administration of 1891-1919 were retained by the British from 1919-1961 and most are still recognised today by the Tanzanian government. Over time, each administration continued to add to the State controlled area with more forest reserves, game reserves and national parks.
While the physical boundaries of these forest reserves have usually remained the same over time, the policies under which they were managed have changed. Under customary law forest was preserved for traditional rituals, resource conservation and acted as a source of famine foods or shelter during inclement times. The eastern African climate is unpredictable and maintaining a mosaic of vegetation types with a range of resources was a well regulated part of traditional land use management that enabled people to survive droughts or excessive rains.
The German and British administration were concerned about over-exploitation of the forest resource by timber extraction, replacement by cash-crop plantations and degradation by fire. After independence the Government of Tanzania continued to use the 1957 British forest ordinance, but this was replaced in 1998 by a new forest policy and in June 2002 by a completely revised Forest Act. The new policy and law integrate the sentiments of the international 1992 Biodiversity Convention with a recognition that people living near to forest reserves should be involved in forest management.
This text and the text in other pages in this section is taken from:
Lovett, J. (2003). STATUTE NOTE. Journal of African Law, 47(1), 133-135. doi:10.1017/S0221855303002050
Lovett, J. C. (2003). Tanzanian forest law. In Chaytor, B and Gray, K. (eds.) International Environmental Law and Policy in Africa (pp. 151-180). Springer Netherlands.
The British forestry policy continued where the prvious German administration had left off . During the military campaign of 1914-1918 the lack of any effective control resulted in encroachment into many of the forest reserves established during the German administration. The previous German forest law was followed during early British day. On the 18th December 1920 a Forest Department was instituted by appointment of an officer to be the Conservator of Forests and in 1921 the Forest Ordinance 1921 (GN 32) was passed, based on the Ordinance used in adjacent Kenya colony with inclusion of provision for control of forests on private lands. The ordinance was aimed at protection and development of forest reserves gazetted by the Germans, plus reservation of further areas, formation of plantations, control of cutting and collection of forest revenue. The German reserves were all regazetted in GN 32, and prohibition of cultivation, habitation, grazing and entering within forest reserves placed at the discretion of the Governor. Access to forest produce was strictly controlled (Article 14):
“Any person found within a forest area, or in its vicinity, and having in his possession any forest produce, who, on being thereunto required by any Forest Officer, refuses to give satisfactory account of the manner in which he became possessed of any such produce may be taken by the officer interrogating him before a Magistrate…”
However, the initial strict nature of the 1921 Ordinance was modified in 1926 (GN 86) to specify that “no royalty was payable by natives in respect of any forest produce taken by them for their own use only” and in a later modification (GN 163) it was made possible for a forest officer to issue a written permit for a specified quantity of forest produce to be extracted without fee or royalty. This brought the Ordinance more in line with the spirit of the 1923 Land Ordinance and League of Nations Mandate, though this was later to change again and revert to tighter control of “natural fruits”.
Forest Policy increasingly became concerned with protection of water supplies and sustainable utilisation. On 14th April 1925 the Forest Policy submitted to, and accepted by, the Governor included : “Examination of existing forest resources on both provisionally reserved and unreserved areas and determination of the areas suitable for permanent reservation, for forest production as well as for regulation of stream-flow, conservation of water supplies and maintenance of soil fertility. Regulation of forest exploitation within reserves to the permissible quantities having in view a sustained yield…. Protection of the forest estate from damage by fire, man and beast.” This policy was reflected in the government gazette of 1927. Forests on private lands could be protected and managed by the Governor under the 1921 Forest Ordinance and in 1927 an amendment to the Ordinance enabled such forests to be scheduled in the same way as reserves on public lands . The private forests of the Eastern Usambara were scheduled under this rule to prevent excessive felling in order to protect water catchments. The Forest of Ordinance of 1921 was replaced in 1933 by a new set of rules that included both protection of water supplies and control of deforestation on private land . The 1933 Forest Ordinance continued to restrict access and extraction of forest produce from reserves.
Importantly, in contrast to recognition of customary rights and access to “natural fruits” embodied in the 1923 Land Ordinance, provision for obligatory free issue of forest products from forest reserves to natives was omitted. Collection of timber and other forest produce, cultivation, residence and grazing of stock were permissible only by permit.Forest reserves continued to be gazetted for the purposes of watershed protection, and by 1942 most of the gaps left in the pattern of German reserves as a result of the Wahehe resistance and Maji-Maji rebellion had been filled.
The exigencies of the Second World War resulted in a large increase of timber extraction , emphasising the role of forest reserves as a resource for the State rather than a benign form of protection for posterity. Timber consumption doubled and the volume of exports more than quadrupled. Exports of minor forest products, such as wild rubber, tanning bark and gums, more than doubled in value. Half of the increase in timber production was for railway sleepers and came from woodland outside reserved forests, but extraction in closed moist forests also increased.
In a Government White Paper presented to the Legislative Council in 1953 the importance of forests for water catchment and sustainable supplies of forest produce became part of a Government Forest Policy . The policy explicitly recognises the importance of forests in supplying benefits for local people, but the means of achieving this policy was paradoxical as it required further alienation of forest resources:
“To demarcate and reserve in perpetuity, for the benefit of present and future inhabitants of the country, sufficient forested land or land capable of afforestation to preserve or improve local climates and water supplies, stabilise land which is liable to deterioration, and provide a sustained yield of forest produce of all kinds for internal use and also for export.”
In 1957 a Forest Ordinance became law which was broadly similar to earlier forest law under the British administration, and which was to remain in force until June 2002.
The Forest Act, 2002, not only replaced the 1957 Forest Ordinance, but also the Export of Timber Ordinance (Cap. 288) and Grass Fires Ordinance (Cap. 135). Inclusion of fire control brings a widespread activity under the remit of the Forest Act, even though burning is usually practised in connection with agriculture, hunting or grazing. However the most significant changes are concerned with biodiversity conservation and community forest management. Biodiversity protection is included throughout the Act. Provision is made for establishment of a fund which includes the purpose of assisting Tanzania to benefit from international initiatives and funds for biodiversity conservation. Environmental impact assessments are required in forested areas and watersheds for certain developments. National forest reserves may be declared as nature forest reserves to maintain and enhance biodiversity and genetic resources. Outside the reserves, conservation of trees includes both protection of natural water supplies and biodiversity; and provision is made for protection of wild plants and animals listed in the government gazette. Sovereignty over “biological resources, their derivative products and intangible components” is also affirmed.
Forest management plans are required to be drawn up for each forest reserve. The plans not only have to contain provisions for protection of wild animals and plants, but also details on involvement of communities in the use and management of forest resources. In establishing new national forest reserves consideration has to be given to whether it is better to establish a village or community forest reserve as the most efficient and equitable way to maintain the balance between existing rights and protection of forest resources. Village reserves may be owned and managed by one or more villagers, and community forest reserves are managed by a group of people who are members of a village or live in or near a forest. This approach to forest management, although it has been used in other countries such as Nepal for more than twenty years , is a radical departure from the previous system in Tanzania. Initially pioneered in Singida in the early 1990’s the aim is to meet a wide range of objectives from equitable access to sustainable utilisation and protection of forest resources.
In this way, the intent of the 1923 Land Ordinance in terms of sustainable access to natural fruits, is finally being realised for Tanzania’s forests. However, critics of community involvement in natural resource management have suggested that this is simply a way of government passing on costs from central to local level . Ultimately it may be impossible to reconcile the local need for forest products and global interests for biodiversity conservation. In this case equity could be restored through direct payments for conservation which could be routed through the fund established under the new Forest Act. Though whether or not this type of payment will reappear at the village level is open to question.
Forest Ordinance 1921
A State controlled forest estate was initially established under German colonial administration during the period 1891 – 1919 to protect forest resources from clearance by both settlers and local inhabitants . Following transfer of German territories to British control, the 1921 Forest Ordinance , which was based on that used in adjacent Kenya colony, reinstated Forest Reserves delimited by the Germans and placed restrictions on access to, and use of, forest products. These restrictions were not in the spirit of the 1922 League of Nations Mandate for Tanganyika Territory. Under the mandate interests of the local inhabitants were paramount and indirect rule was planned to lead to independence. For example, the preamble of the 1923 Land Ordinance stated :
“WHEREAS it is expedient that the existing customary rights of the native of the Tanganyika Territory to use and enjoy the land of the Territory and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families and their posterity should be assured protected and preserved”
The strict nature of the 1921 Forest Ordinance was later modified to permit greater access to “natural fruits” (in the sense of the 1923 Land Ordinance) by modifications in 1926 and 1930 (see below).
Forest Ordinance 1933
The Forest of Ordinance of 1921 was replaced in 1933 by a new set of rules that included both protection of water supplies and control of deforestation on private land . The 1933 Ordinance continued to restrict access and extraction of forest produce from reserves:
“No person shall, in any forest reserve do any of the acts or things following:-
(1) Fell, cut, take, work, burn, injure or remove any tree or forest produce;
(2) Squat or reside or build any hut or cattle enclosure;
(3) Fire any grass or undergrowth;
(4) Graze or depasture cattle;
(5) Clear, cultivate, or break up land for cultivation or any other purpose;
(6) Enter any part of a forest reserve, which, by order of the Governor, may be closed to trespassers; or
(7) Deface, injure or remove any forest boundary mark.”
Importantly, in contrast to recognition of customary rights and access to “natural fruits” embodied in the 1923 Land Ordinance, provision for obligatory free issue of forest products from forest reserves to natives was omitted. Collection of timber and other forest produce, cultivation, residence and grazing of stock were permissible only by permit.
Forest Ordinance 1957
Restrictions in the 1933 Forest Ordinance were retained in the 1957 Forest Ordinance and the objectives of forest policy during the remainder of the British Administration were essentially two-fold. Firstly for timber production in plantations, and secondly for protection of natural forest for water catchment. It was in pursuance of this latter policy that the State controlled forest estate was expanded, particularly during the 1950’s, to cover most of the natural closed forests not originally gazetted by the Germans.
Following independence in 1961 the new government retained most of the State controlled forest estate, continued to use the 1957 Forest Ordinance and maintained a forest policy primarily geared to protection of natural closed forest for catchment and plantations of exotics for production. The British 1957 Forest Ordinance remained in force until the 2002 Forest Act was passed.
The Forest Act, 2002, not only replaces the 1957 Forest Ordinance, but also the Export of Timber Ordinance (Cap. 288) and Grass Fires Ordinance (Cap. 135). Inclusion of fire control brings a widespread activity under the remit of the Forest Act, even though burning is usually practised in connection with agriculture, hunting or grazing.
However the most significant changes are concerned with biodiversity conservation and community forest management. Biodiversity protection is included throughout the Act. Provision is made for establishment of a fund which includes the purpose of assisting Tanzania to benefit from international initiatives and funds for biodiversity conservation. Environmental impact assessments are required in forested areas and watersheds for certain developments. National forest reserves may be declared as nature forest reserves to maintain and enhance biodiversity and genetic resources. Outside the reserves, conservation of trees includes both protection of natural water supplies and biodiversity; and provision is made for protection of wild plants and animals listed in the government gazette. Sovereignty over “biological resources, their derivative products and intangible components” is also affirmed.