New Land Laws in Malawi

Following yet another referral to a Parliamentary Committee of the New Land Laws' for Malawi, I share the following views I made some two years ago. The views were valid then. They are valid now:

 

Preliminary

1.      As we discuss land reform in Malawi, we must keep in mind the importance of asking the right question. What does the land reform in this country seek to achieve? What is the nature of the problem the reform is addressing? What should be done to resolve the problem? And so on and so forth. Asking the right question must go together with ensuring that we get the right information.

 

2.      At various fora, we have heard of descriptions such as ‘Land Bill’; ‘Land Rights Bill’; or ‘Land Law Bill’. These descriptions refer to the following eleven (11) Bills: the Land Bill; the Registered Land (Amendment) Bill; the Physical Planning Bill; the Forest (Amendment) Bill; the Companies (Amendment) (No.2) Bill; the Mines and Minerals (Amendment) Bill; the Land Survey Bill; the Lands Acquisition (Amendment) Bill; the Local Government (Amendment) Bill; the Malawi Housing Corporation (Amendment) Bill; and the Customary Land Bill. Of these eleven bills, the Land, the Registered Land (Amendment), and the Customary Land Bills respectively are directly pertinent to the land question in Malawi. The Bills, except for the Companies (Amendment) (No.2) Bill, emanate from the work of the Law Commission on the review of Land-related Laws between 2003 and 2006. The report of the Commission was published in the Malawi Gazette in 2010. 

3.      As a country, we must first resolve land reform before we swiftly move to land law reform. At the very least, the two processes must be done simultaneously. Where we prioritize land law reform over land reform, we risk perpetuating the structural factors that have entrenched unequal land relations in Malawi. 

4.      History and context are very important in land reform. Land relations in Malawi have been informed by colonial law and policy; the nature of the neopatrimonial State since 1964 to date; the Structural Adjustment Programs of the 1980s; and the re-emergence of (global) land reform policies at the turn of the 1990s. 

5.      Our understanding of the ‘customary’ space is also crucial in land reform in Malawi. The mainstream understanding of customary land law has been largely influenced by the work of Africanist academics who emerged in the 1950s and 1960s; and the Restatement of African Law Project in the 1960s. 

It is very pertinent that we analyse the nature of the ‘customary’ space in 21^st century Malawi. What is really going on in this space regarding land relations today? To what extent have the constitutional principles on equality, non-discrimination, culture, to mention a few, modified (or ought to modify) land relations in the ‘customary’ space? 

6.      Malawi should desist from short-termism in its national development planning. Our development planning should be guided by 25, 50 or even 100 year cycles. The forum shifting that has occurred in the land sector, for example, has actually undermined the land reform process in the country. It is crucial that national policies talk to each other. In many respects, existing national policies are actually contradictory in addressing the issues in the land sector. 

7.      Malawi adopted the National Land Policy in 2002. This followed processes involving the Presidential Commission of Inquiry on Land Policy Reform in 1996; and the land utilization studies between 1995 and 1998. Beyond the adoption of the National Land Policy, the State initiated the review of land-related laws by the Law Commission between 2003 and 2006.  

The National Land Policy seeks to achieve two key goals: First, the eradication of lack of access to land through land redistribution. Second, the Policy is the guiding framework where land reform in the country will foster economic growth through efficient land use. The question that must arise is: To what extent have the eleven Public Bills that have been developed lead to the achievement of the two key goals under the National Land Policy? 

8.      While the focus on the text of law is welcome, what are the developments within the wider political economy in Malawi regarding access to land? There are critical ‘power’ dynamics within the constituency of the land deprived which, in my view, cannot be addressed simply by law reform.  

9.      If I may comment on the process of enacting the new land laws based on what happened during the enactment of the Land Bill, Bill Number 37 of 2013: First, the various interest groups must embrace horse trading. If we focus on the wider agenda of achieving prosperity for Malawi, interest groups must adopt a give-and-take attitude in the legislative process. Second, we must realise the danger of those who know very little. A number of so-called interest groups that appeared before various parliamentary committees actually confused the process instead of adding value to it. Our parliamentary committees must strictly vet the expertise of some that appear before them. Land reform, let alone, land law reform is a highly technical area that requires refined expertise to assist our parliamentarians as they consider the various Bills relating to the land sector.

Some Technical Issues

10.  The Land Bill defines ‘land’. Currently, ‘land’ is defined under the Registered Land Act.

Original Title 

11.  Section 8 of the Land Act provides that all public land is vested in the President. Clause 10 of the Land Bill provides that all public land must vest in the Republic. This is the case because section 207 of the Constitution provides that all lands and territories in Malawi vest in the Republic. Section 207 of the Constitution provides for what is known as ‘Original Title’. Original Title is title that creates a right for the first time. In relation to land in Malawi, section 207 of the Constitution creates the right in all lands for the first time. It is important that a land law, in this case, the Land Bill must contain the same principle as the one under the Constitution. Hence, clause 10 of the Land Bill is important because it repeats the principle under section 207 of the Constitution by vesting lands in the Republic – the State – and not the President. 

Categories of Land 

12.  The Land Act provides for three categories of land: Public land, Private land, and Customary land. The Land Bill provides for two categories of land: Public land and Private land. Under the Land Bill, public land is defined as follows: 

“public land” means land held in trust for the people of Malawi and managed by Government, a local government authority or a Traditional Authority and includes 

(a) any land held by the Government or a local government authority consequent upon a reversion thereof to the Government or local government authority, as the case may be, on the termination, surrender or falling in of any freehold or leasehold estate therein pursuant to any covenant or by operation of law; 

(b) land acquired and privately owned by Government or a local government authority used for dedicated purposes such as Government buildings, schools, hospitals and public infrastructure; 

(c) land gazetted for national parks, recreation areas, forest reserves, conservation areas, historic and cultural sites; 

(d) land vested in Government as a result of uncertain ownership; abandonment or land that cannot be used for any purposes; and · 

(e) unallocated and communal land within the boundaries of a Traditional Land Management Area; 

This means that ‘public land’ is land held under a trust for the people of Malawi, Government land, land belonging to a city, municipality, town or district assembly, and unallocated (customary) land under the administration of a Traditional Authority. 

‘Private land’ under the Land Bill is defined as follows: 

“private land” means all land which is owned, held or occupied under a freehold title, or a leasehold title, or as a customary estate or which is registered as private land under the Registered Land Act; 

This means that ‘private land’ is land under a freehold title, leasehold title and a customary estate. Under the Land Act, there is no ‘customary estate’. The customary estate is a new idea that comes from the National Land Policy and has been included under the Land Bill. The customary estate is defines as follows: 

“customary estate” means any customary land which is owned, held or occupied as private land within a Traditional Land Management Area and which is registered as such under the Registered Land Act; 

It is important to also look at the definition of ‘customary land’ at this stage. Customary land is defined as follows: 

“customary land” means all land used for the benefit of the community as a whole and includes unallocated land within the boundaries of a Traditional Land Management Area; 

The definitions of customary estate and customary land must be harmonized. One possible way towards this harmonization is to define ‘customary estate’ as follows: 

“customary estate” means any land which is owned, held or occupied as private land within a Traditional Land Management Area and which is registered as such under the Registered Land Act; 

The current definitions of private land and public land leaves the lingering question whether it is possible to have any patches of land anywhere in Malawi which may be referred to as ‘customary land’ to warrant the development of a whole piece of legislation; the Customary Land Bill. My view is that the development of the Customary Land Bill is, in fact, ill-conceived. 

Access to Land by persons who are not citizens of Malawi 

13.  Under the Land Act, persons who are citizens of Malawi and those who are not citizens of Malawi can acquire any type of title in land, including freehold title. Under clause 4 of the Land Bill, persons who are not citizens of Malawi cannot generally acquire freehold title in land. Clause 4 of the Land Bill goes on to state that persons who are not citizens of Malawi can only acquire freehold title in land if it is for investment purposes only under a partnership or joint venture with a person who is a citizen of Malawi. This means that a person who is not a citizen of Malawi cannot acquire freehold title for residential purposes. The nature of investment must pass the requirements under the Investment and Export Promotion Act. The freehold title can only be acquired in land vested in the Malawi Investment and Trade Centre Limited. Finally, clause 4 of the Land Bill provides that persons who are not citizens of Malawi but own freehold title in land will be required to change their title to leasehold title. Such persons may retain their freehold title in land if they acquire Malawi citizenship under the Citizenship Act within seven years of the commencement of the Land Bill as the new Land Act. 

14.  Under clause 33 of the Land Bill, a person who is not a citizen of Malawi may only be granted a leasehold title in land of 50 years. Such person may be granted a greater term than 50 years if special reasons are provided in the application. Further, under clause 34 of the Land Bill, a person who is not a citizen of Malawi can only acquire private land where no citizen has made an offer to acquire the land. Clause 35 of the Land Bill allows the Minister to acquire freehold land owned by non-resident non-citizens who have not developed their land for a continuous period of two years. This provision seeks to address the issue of absentee landlords. Clause 36 of the Land Bill provides that title to private land by gift shall not pass between persons who are not citizens of Malawi. This provision seeks to address tax avoidance by persons who are not citizens of Malawi. Finally, under clause 45 of the Land Bill, the Minister responsible for land matters may require proof of evidence of Malawi citizenship of persons involved in a land transaction. 

Women, Malawi Citizenship Laws and Retention of Freehold Title 

15.  Clause 4 of the Land Bill must be read together with the Citizenship Act when looking at the right of women to lease, hold or acquire title in land in Malawi. Section 9 of the Citizenship Act provides as follows: 

A citizen of Malawi, being a woman, who acquires by marriage the citizenship of some country other than Malawi shall cease on the first anniversary of the date of that marriage to be a citizen of Malawi unless, before that anniversary, she has made a declaration in writing—

(a)   in the form specified in the Third Schedule, of her intention to retain citizenship of Malawi; and

(b)   in the form specified in the Fourth Schedule, renouncing, so far as it lies within her power, citizenship of that other country. 

If indeed, a female citizen of Malawi acquires citizenship of another country because of her marriage to a foreigner then she will be affected by clause 4 of the Land Bill. Malawi’s law and policy on citizenship prohibits dual citizenship. However, the Citizenship Act flouts the constitutional provisions on equality before the law and non-discrimination because there is no similar provision to section 9 of the Citizenship Act that applies to male citizens of Malawi. One way forward is to amend the Citizenship Act to ensure that there is no discrimination in favour of male citizens over female citizens of Malawi in the application of the principle in section 9 of the Citizenship Act. 

Lingering issues for consideration 

16.  The issue of female citizens of Malawi and the retention of freehold title under clause 4 of the Land Bill when read together with section 9 of the Citizenship Act. 

17.  The issue of equality of right of women and men to hold, acquire or dispose of land may be approached from two fronts: First, the principle may be included in the Land Bill as a ‘guiding objective’ for land matters. Second, and alternatively, it can be provided for as a substantive provision under the Registered Land (Amendment) Bill. In terms of good legislative drafting practice, the issue is best suited for inclusion under the Registered Land (Amendment) Bill. 

18.  The Registered Land (Amendment) Bill may provide for mandatory joint registration of title on acquisition of property by spouses. A similar mandatory requirement may accrue on use of property in the credit market, and on disposal of property. 

19.  The role of chiefs in land administration and management is not very clear under the Land Bill, the Registered Land (Amendment) Bill and the Customary Land Bill. 

20.  There are also a number of (wider) policy reforms that must complement the land law reform process. These relate to the general framework of Malawi’s macro economy.