Turf war: advising the Maasai in a battle for their lands

A report on Simmons & Simmons’ pro bono client work on international matters relating to the Maasai’s battle for their lands.

Chris Owen, a Supervising Associate in Simmons & Simmons’ London Litigation Department, has recently returned from a working visit to Tanzania, where he has been advising one the firm’s pro bono clients, NGONET. NGONET is a non governmental organisation which acts as the umbrella organisation for a larger group of NGOs, each of which represent the interests of the Maasai people.

The Maasai are a semi nomadic population who practise pastoralism. The usual arrangement is to establish small community villages where women, children and elders live, whilst the men travel around the region grazing their cattle in different locations. The men spend around three months away from the village tending the herd before returning. The social, economic and environmental benefits of this way of life are recognised both at the UN and EU levels and there is a commitment to seek to preserve pastoralism.

The Maasai are currently facing extreme pressure over their land. Traditionally, they lived in an area now covered by the Serengeti (Tanzania) and the Maasai Mara (Kenya). However, in 1958 they entered into an agreement with the British colonial administration to move away from these lands and into the Ngorongoro and Loliondo regions of Northern Tanzania so that the National Parks could be created. Despite this initial upheaval, for several decades the Maasai lived relatively undisturbed in Ngorongoro and Loliondo.

Land grabs

However, since the early 1990s, commercial interests have increased in the area. In particular, a number of safari companies and hunting groups have started operations. In general, the Maasai have been happy to share their lands with these groups and there are a number of success stories whereby commercial agreements have been entered into between the Maasai and international businesses. The most successful agreements have recognised that the land belongs to the Maasai and the commercial entities have taken leasehold interests on payment of a fair market rent to the Maasai.

Unfortunately, not all commercial entities have respected the Maasai’s land ownership. A few have sought to take over the legal ownership of the land and to evict the Maasai, in some cases violently. This has led to great uncertainty and distress both in relation to the Maasai’s land tenure and to their personal security. 

A legal solution?

In response to these threats, the Maasai have grouped together and have commenced three cases in the Tanzanian courts. Although the facts of each case are different, the aim of each is to seek a declaration that the Maasai are the legal owners of the land they occupy. This will involve a consideration by the local courts of the land title documents and the interplay of the relevant provisions contained within the Village Land Act 1999 and the Land Act 1999.

One of the cases is also framed as a constitutional challenge, seeking to argue that recent government legislation (the Wildlife Conservation Act 2009) allowing reclassification of Maasai village land for commercial interests is unconstitutional. The case will also dispute the validity of the new Land Use Plan which has been drawn up for the region without input from the Massai.

This constitutional challenge is likely to take time to progress, as cases with a constitutional element must be considered by three judges. There is also concern that political prejudice against the Maasai may make a favourable result at first instance unlikely. However, there are avenues of appeal should the case be dismissed at first instance.

In addition to raising issues of national land law, the three cases also involve questions of international law applicable to land ownership and protecting indigenous groups. It is likely that the cases could be appealed to international tribunals, such as the African Commission or African Court of Human and Peoples’ Rights. Indigenous groups have had some success before international tribunals in respect of similar issues. For example, the African Commission recently recognised the land rights of the Enderois people of Kenya in February 2010. Given these international law aspects, NGONET have requested Simmons & Simmons’ assistance to work together with the local Tanzanian law firms handling the cases.

Chris is managing a large team of lawyers across several of our offices working with NGONET’s local lawyers to provide research and input on matters of international law, land law and case strategy. The purpose of Chris’ visit was to meet face to face with the client, the local lawyers and the villagers, to gain a better understanding of the operation of the cases at ground level and to develop case strategy. It is hoped that this international partnership will increase the prospects of the Maasai being able to obtain a fair deal in respect of their land ownership.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.