Customary Law of the Haya Tribe

Tanganyika Territory

Hans Cory, M. M. Hartnoll

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138500372
• eBook ISBN: 9781351013178
• Topic: Social Sciences
• Subtopic: Anthropology
• Index: Social Sciences

Originally published in 1945, this book was written at a time when an increasing European influence was affecting customary law in what was Tanganyika and this volume records different aspects of customary law such as inheritance, matrimony, divorce, property and the courts. Tribal structure in Uhaya is also discussed and a list of clans provided.

LAW OF PROPERTY.
REAL PROPERTY

GENERAL RULES.

507. Allocation fees (Kishembe) are paid on a plot as a unit, not on each separate division. If such a unit contains mwate the fee is Shs.10/=; if it has no mwate the fee is Shs.5/=.

NOTE: Originally the word used for land allocation fees was buhais a which means “something that is a case for giving”. The word was not confined to the allocation of land but was used generally to denote a consideration which clinches a bargain between donor and recipient. The word Kishembe means a bribe and denotes the giving of a present to someone to induce him to intercede on behalf of the donor. Kishembe is now used generally, except in Kiziba, to denote the allocation fee. The original purpose of the dues paid for the allocation of land was that the acceptance of them by the Chief and his envoy was a recognition of the rights over the land in respect of which they were accepted. The amount paid varied; on the allocation of a nyarubanja the recipient usually paid a cow or a muzana (female slave) to the Chief. This was called kasha (that which produces). See Native Land Rules 1932. Letter No.20942/12 of 21-6-1932.

508. Should a man cultivate a plot for which he has not paid kishembe or transgress the boundaries of one on which he has paid, he is liable to a fine (exceptions, paras. 519, 519 note, 543, 595).

509. If he wishes to apply for the land he must then pay the allocation fee in addition to his fine.

510. If he does not apply for it, or if his application is not granted he may be required to uproot the crop.

511. Actual occupation of land confers no title, no matter how long it has been occupied.

512. Wherever the term ownership is used it implies “usufructory title nearly amounting to full ownership”.

I PUBLIC TENURE.

Irungu.

513. This name is given to that part of the public land which is unoccupied.

514. All allocations for which the fee (kishembe) of Shs.5/= is paid are taken from the irungu. The fee is payable to the Native Authority.

NOTE: The institution of the payment of kishembe is very old. In former times it was paid in kind.

QUOTATION: D.O’s appeal No.73 of 1934.

Maschonko v. Rushakanza.

Maschonko claimed a piece of land from Rushankaza, stating that he had inherited it from his father; but Rushankaza could bring witnesses to prove that his father had paid an ox to the Chief on account of it. Maschonko lost his case because the payment could have only one interpretation, that the land passed into the ownership of Rushankaza’s father.

515. There existed, and in some places still exists, a man known as the Muharambwa (or mwambansi or muhambansi or kusi) who has certain duties with regard to the irungu.

NOTE: The duties of a Muharambwa and his general position vary not only in the different chiefdoms but also sometimes in the villages of the same chiefdom. In many places the descendants of the Baharambwa have ceased to perform any of the duties of this office; in others they still perform duties of a religious character (see Appendix IV page 281). Where the office of Muharambwa is obsolete his duties are carried out by the Bakungu.

The Chiefs made the following statements as to the position in their respective areas :-

KARAGWE:	No Baharambwa
IHANGIRO:	The Muharambwa has no duties with regard to the irungu.
KIZIBA:	The Muharambwa is the overseer of the irungu.
MARUKU:	The Mukungu undertakes many of the former duties of the Muharambwa. The Mukungu is responsible for the boundaries of newly alloted plots in the Irungu. The Muharambwa is called as witness and assistant of the Mukungu.

516. The whole country was divided into districts each with its Muharambwa. The boundaries of these areas correspond with the village boundaries and therefore each village has its Muharambwa except where a village has been divided into two and no second Muharambwa has been appointed.

517. Where the Muharambwa still functions, his duties with regard to the irungu are that when land is allotted against the payment of kishembe, he is usually called to be present at the demarcation of the boundaries to ensure that they do not interfere with any existing land rights.

518. Before the new owner starts to cultivate it is customary for him to ask the Muharambwa to plant the first seed.

519. Should a clan find that its rweya rwa luganda (see para.590) has become insufficient for its needs it may temporally overstep its boundaries and cultivate in the irungu with the permission of its Muharambwa. In this case no kishembe is paid.

NOTE: There is a certain amount of cultivation done on free land; i.e. where there is free unoccupied land in a village no objection is made if the villagers use it for seasonal crops. That they do so confers on them no title to the land and no right to demand its use in future. They ask no permission and pay no kishembe, and should the land ever be required for allocation they have no rights in it. It was explained that the phrase used to denote such cultivation on land for which kishembe has not been paid is “Kulima rweya” while for land which is cultivated by an owner the correct phrase is “Kutumya rweya”.

520. When this happens the Muharambwa may demarcate in the new area a plantation of his own, which is cultivated for him by the women who have plots in the rweya, for as long as the boundaries are overstepped.

521. Permission thus given to cultivate new land is merely temporary and confers no title.

522. It may happen that women from another village ask to cultivate irungu in the district of a Muharambwa not their own, in which case the Muharambwa concerned may give or withold permission as he sees fit.

523. The Muharambwa may enter any plot under seasonal cultivation to advise the women cultivating it on rotation and their work.

524. The Muharambwa is entitled by custom to small gifts in kind, which are called nsuka (except in Maruku where the name is maisho).

II INDIVIDUAL TENURE.

A. Kisi.

(In Karagwe: Enshambo; in Missenye: Itaka; in Kyamtwara: Kyeya.)

525. This is the name given to such arable land as is capable of bearing a perennial crop.

526. Kisi can be acquired only on payment of Shs.5/= to the Native Authority.

Proceedure for allocation.

527. A prospective settler who is a stranger has first to find a sponsor, called his Muhikya, who collects as much information as possible about the newcomer. The Muhikya must be a man of standing in the village. The prospective settler may be introduced to his Muhikya by another villager to whom he is known. While the Muhikya is collecting his information, which takes some time, the settler chooses the plot he will apply for. When the Muhikya is satisfied he introduces the newcomer to the village headman with a request that he will inform the Mwami (Sub-Chief) of the application for land. If the Mwami approves he appoints an elder, who is known as a Mutaya, to go to the village. On the appointed day the Mukungu, the Mutaya, the applicant for the land and the neighbours assemble at the chosen plot. It is customary also to call the clan-head of the leading clan and the Muharambwa as witnesses. The Mutaya fixes the boundaries by planting a tree every twenty or twenty-five feet along them. Mulinzi or murumba trees may be used but preferably mulamula (Kulamula means ‘to decide’).

528. All those present, particularly the Mutaya, are witnesses to the allocation and when the boundaries are fixed the applicant goes to the Gombolola to pay his kishembe.

529. Besides this form of boundary demarcation another method was used in former times where land was abundant. The plot was allocated not by marking out definite boundaries, but by pointing out prominent landmarks; thus a man was told that his plot extended “as far as the river”, or “as far as the forest” and that the breadth of it was “between this hill and that hill” etc. So common was this method that the Chiefs laid it down in their appeal case No.1 of 1935 that where definite boundaries are demarcated it is proof that the land was not allocated unless it is of recent acquisition.

ILLUSTRATION: A applied for a plot of land and B claimed that it could not be allocated to A since it belonged to him (B). A asked for proof, saying that there were no boundaries demarcated. B replied that the fact that there were no boundaries was his proof of ownership coupled with proof that it had been in his family for many generations.

530. Even for this form of allocation a Mutaya was appointed, and the Muharambwa and other witnesses above mentioned were called to the spot.

Owner’s Rights and Duties.

531. ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• INTRODUCTION
• Inheritance
• BRIDEPRICE
• MARRIAGE
• DIVORCE
• LAW OF PROPERTY
• COURTS
• Appendices: I Description of Bushwere ceremonies
• II Actions for Damages
• III Tribal Structure in Uhaya
• IV Clans in Uhaya
• V List of Clans
• Tables of Clans
• Index