Alienating land in customary areas in Zambia

By Emmanuel Tembo
There has been debate lately as to whether vesting land in the President to hold it on behalf of the people translates to disempowering the chiefs from the age old responsibility of having a say in the allocation process of land in customary areas. This debate was brought to the fore due to pronouncements by the Justice Minister who seems to have suggested that any land meant for development can be acquired by the state without any consultations of the traditional leaders since it land is vested in the President.

Chief Chitimukulu in his online publication on the 3rd of July eloquently argued the case according to the existing law. We cannot belabour the point any further except to state that the Justice Minister might have been “drunk” with the power of being the acting president at the time he stated this.

Questioning the role of chiefs in land administration

The Chief however made other statements which this author felt need to be addresses. For instance he argues that politicians since 1991 have been on a mission to abolish traditional rulership. I will not dwell on the aspect of the political battles between Chiefs and those in political office. However, I will want to address the issue regarding land administration in traditional land.

The chief has argued that the Draft Land Policy of 2002 is a “satanic” document created by technocrats with no heart for the peasants! His bone of contention stems from a Chapter 3 which talks about the FACT that the currently land delivery system is not able to meet demand for land in both customary and state land. One would ask the question to the Chief: Is this not a fact? i.e. that the land delivery system is not able to meet the demands in both towns and rural areas and that there is urgent need to reform the system? Ancillary to this, one can further ask if indeed it is not time, nay past time, to consider our land delivery system and to even interrogate the role of the Chiefs in the land administration system in the country.

This paper poses the fundamental question of whether the institution of chiefs in its current form is able to deliver to us as a people,a land administration system that not only reflects a pro-poor approach but most importantly engenders development in our rural areas. Thus far we have lived with the institution of the chief as the one who provides consent after consultation for any development to take place in customary areas. This consultation is generally premised on the understanding that indeed the chief has made the necessary consultations with his subjects and therefore when he puts pen to paper it is assumed that this has been done. If a traditional ruler is being by-passed and titles are being issued behind his/her back then the Land Act is being abrogated with impunity. However, the truth of the matter is that for all land on title in customary areas you will find a consent form signed by the chief and were land is above 250hectares such land will also have the Minister’s approval. But has the system served us well or do we need to change something in our land administration system?

Land administration

To help us better understand this let us start by first defining Land Administration: Land as we all know is central to social and economic development of any nation especially the huge expanse of land called Zambia. All human activities revolve around land. Land Administration can be considered to be the way in which a society exercises stewardship over land taking into consideration the Land Tenure systems, culture and social norms. That Land administration has more connotations than mere stewardship is the basis of our “trouble” in administering it. To operationalize the process of land administration we must take into consideration its constituents; namely

1. Land Acquisition,
2. Land Allocation
3. Land Registration,
4. Land Surveying,
5. Land Use Planning
6. Land use monitoring.

The glue that ties all these together is how we manage our land information. Now, for each one of these elements there is a certain minimum required skill set that would ensure an optimal land administration system. Traditional land in Zambia has been governed by traditional customs and has generally been accepted to be stable in so far as it has never led to serious conflict over land. The Land Act of 1995 is the guiding Act which recognises customary tenure. The Act further allows for the conversion of Title from traditional to state lease. As said earlier one can obtain 14 year leases for a piece of land in traditional areas if one obtains consent from the chief and has a sketch plan for the area.

The aspect of conversion suggests the “superiority” of holding land on state lease rather than customary holding upon the land being surveyed. The State Lease will normally be given for a period of 99 years. In areas near the cities (formerly held as customary land) there has been high conversion from customary to leasehold to the exclusion of all others.A study
carried out by Augrey Malambo found that most villagers in Chibombo were now converting their customary land to leaseholds and that their land holdings were becoming smaller. The pecuniary advantage of selling land under the Land Act of 1995 is that it gives the rural land holders an opportunity to convert land holdings into cash.

However, when such land is sold it then is converted from customary tenure to leasehold and becomes the exclusive use of the one who has bought and done the conversion. An analysis of this process will suggest that over time communal land will be reduced to the extent that there shall be very little land remaining as customary land.

Technocrats should administer land

Did the Land Act (1995) take away the rights of the people to control land holding? Chief Chitimukulu in his argument suggests that rural people were opposed to the enactment of the Land Act because it took over control of all forms of land tenure and passed it on the state. Particularly, the chief seems concerned with Section 3 which vests land in the President. As ably answered by the late President Levy Mwanawasa vesting of land in the president should not in itself be a problem because firstly the president is an institution and secondly such vesting of land is not a blanket allocation of land to the president. While subsections 2 and 3 allow the President to alienate land to either a Zambian or non-Zambian, Sub-section 4 clearly states that where land is held in customary tenure the President may not alienate such land without taking into consideration of the local customary law and without consulting the chief and the local authority of the area.

So when Levy Mwanawasa stated that land can only be alienated after consultation with the local chief, he was referring to the Subsection 4 of the Section 3 of the Land Act and not the orders in council as suggested by Chief Chitimukulu. It can be said that Law as it stands protects the local communities from having their land grabbed without their knowledge. This however is not the practice in reality as land has been known to be alienated without the full knowledge of the community in many parts of rural Zambia.

What begs the question though is this: Given the elements involved in Land Administration is the current institutional framework at customary and traditional level able to deliver the much sought after development in rural areas? Remember we have said that at the very minimum Land Administration should have elements of Land Allocation, Land Surveying, Land Use Planning and Monitoring and Land Acquisition.

The Chiefs should not only be fixated at the idea that their power to allocate land has been taken away by the state. We are seeing haphazard development in most rural and peri-urban areas because those basic tenets in Land Administration are not being followed and dare we say cannot be followed by chiefdoms because they do not have the capacity to do so. In this incapacity must be acknowledged by the chiefs so that help can be sought from the technocrats who would ensure that the whole gambit of land administration is done sustainably even in rural areas.

What needs to be done?

We are not suggesting that since the institution of the chief does not have the capacity to carry out the Land Administration function we should then do away with consulting them. There is a problem however when all a chief can do when an applicant has cleared land and stayed in the chief’s jurisdiction for some approved time is to sign consent.

This system is not only open to abuse but also does not help achieve sustainable and structured development in rural areas. While Section 44 through 48 of the Town and Country Planning Act makes provision for regional plans to be prepared which would include customary areas what is currently obtaining is that land allocation and planning and sub-divisions thereof is done rather haphazardly in customary area. We therefore need a new structure that will address the inadequacies inherent in the traditional system. A customary land authority manned with technical staff able to do surveys, planning, and allocation of land and monitoring of development is required. This authority will work with the Chiefdoms and all necessary grassroots stakeholders to be effective. Our customary areas deserve better!