Some thoughts on the new land laws in Malawi

The Executive may present to Parliament for possible enactment, among others, the Land Bill (Bill Number 37 of 2012). The Land Bill is among eleven Public Bills on land-related matters. The Land Bill has generated animated debate amid various constituencies. This is a welcome development. However, it is important that all contributors to the debate must be fully aware of the context of the Land Bill and other land-related bills. I have had to conclude that some of the contributors to the debate are not aware of the context of the bills or they choose to ignore it. I seek to share, as best as I can, this context here.

Land relations in postcolonial economies such as Malawi have been shaped by the nature of colonial capitalism; the law and policy framework of the emergent postcolonial State; and globalisation. The combined effect of these three factors defines the ‘land question’ in these economies. The nature of a ‘land question’ in a country and its political economy defines the trajectory of its land reform. Land reform has continued to take centre stage globally. In recent times in Africa, land reform has been driven by the developmental State of the 1950s (following the dominance of the rhetoric for the reform of ‘customary’ land tenure), market-led economic policies of the late 1970s and 1980s, and the supposed pro-poor economic agenda at the turn of the 1990s. Hence, Africa (and Latin America and Asia) has witnessed debates as to the purpose and direction of land reform, the appointment of commissions of enquiry into land matters, the formulation of national land policies and, ultimately, the enactment of new land laws.

It is against this background that the ongoing land reform in Malawi is located. The reform can be traced to the appointment of the Presidential Commission of Inquiry on Land Policy Reform in 1996, the land utilization studies between 1995 and 1998, the adoption of the National Land Policy in 2002, and the review of land-related laws by the Law Commission between 2003 and 2006. The reform seeks to ameliorate critical land impoverishment, on the one hand, and foster economic growth through efficient land use, on the other hand. The State, it seems, is now ready to enact land laws that reflect national policy change.

The current cycle of land reform is, in my view, the seventh of its kind; the first one taking place between 1889 and 1891 (being the declaration of British territorial sovereignty over British Central Africa, etc). Depending on which side you fall, the various cycles were successes or failures. However, the challenge for Malawi remains to ensure that there is synergy between the language of the Land Bills and other land-related bills, on the one hand, and the policy frameworks, on the other hand, in order to avert critical land impoverishment and, at the same time, promote economic growth for the country.

Parliament must be implored to pass the Land Bill. I have looked at the Bill and my view is that some of the concerns can be dealt with by Parliament, on sound advice, during its deliberations. In this respect, I have in mind, concerns that relate to definitional issues, gaps in the responsibilities of a duty bearer, etc. There are other concerns relating to the rights of women to access land, and the ‘powers’ of chiefs, etc. These concerns may be legitimate but they cannot be addressed under the Land Bill. The advocates of these and other concerns also need to look at the Registered Land (Amendment) Bill and the Customary Land Bill, to mention a few.

Going forward, it is important that the language of the land laws is robust. It is equally important that the policy space is intensely examined to ensure that all relevant policies are harmonized. For instance, it is not healthy if Malawi is to combat rural impoverishment and achieve sustainable economic growth, that our macroeconomic policies and the land policy are contradictory. Lastly, the wider question is: Given the population growth rate and the sizes of available arable land in Malawi, is it viable to insist only on access to land for dignified livelihood?