THE ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

LEGAL RESEARCH LL32

LAND ADMINISTRATION IN ZAMBIA: THE

NEED FOR AN EFFECTIVE CUSTOMARY

LAND ADMINISTRATION.

KELVIN MWICHE

STUDENT No. 21010135

December 2013

Legal research paper submitted in partial fulfilment for the degree of

Bachelor of Laws

i

DECLARATION

I Kelvin Mwiche, Computer number 21010135 do HEREBY DECLARE that the

contents of this legal research paper are entirely based on my findings, that I have not in

any respect used any persons work without acknowledging the same to be so. I therefore

bear the absolute responsibility for the errors, defects and omissions therein.

Date.. Sign

ii

RECOMMENDATION I recommend that the legal research essay prepared under my supervision by

KELVIN MWICHE

Entitled;

LAND ADMINISTRATION IN ZAMBIA:

The Need for an Effective Customary Land Administration

be accepted for examination. I have checked it carefully and Iam satisfied that it fulfils

the requirements pertaining to format as laid down in the regulations governing legal

research.

________________________________________________

Supervisor

Dated the.day of.2013

iii

ACKNOWLEDGEMENTS

I would like to thank the people and institutions that gave support to this study. First I

would like to extend my gratitude to Mr Zulu librarian at the University of Zambia who

gave me total cooperation during my research work at the University of Zambia library.

My sincere thanks are extended to Mr Frightone Sichone under whose supervision this

study was undertaken. In particular I would like to thank Mr Nyuma K. Ngmbi Legal

Counsel at Chambishi Metals Plc and Mr Chrispin Tembo for their encouragement and

comments.

Lastly, am grateful to my wife and children for the support rendered during my entire

period of study. I dedicate this legal research paper to my dear late dad and mom Abel

Kampamba Mwiche and Foster Musonda Mwiche.

iv

TABLE OF CONTENTS

Declaration ......................................................................................................... i

Recommendation ................................................................................................ ii

Acknowledgements ............................................................................................ iii

Table of contents ................................................................................................ iv

Table of statutes ................................................................................................. vi

Table of cases ..................................................................................................... vii

Abstract .............................................................................................................. viii

CHAPTER 1

HISTORICAL DEVELOPMENT OF LAND ADMINISTRATION

1.1 Introduction .................................................................................................. 1

1.2 Historical development ................................................................................ 1

1.3 Reserve land administration ......................................................................... 3

1.4 Post-independence land reforms .................................................................. 3

1.5 Third Republic land reforms ........................................................................ 5

1.6 Background of customary land .................................................................... 7

1.7 Land ownership under customary Tenure .................................................... 9

CHAPTER 2:

LEGAL FRAMEWORK UNDER CUSTOMARY TENURE

2.1. Introduction ................................................................................................. 11

2.2. Procedure for converting Customary Tenure into leasehold Tenure .......... 11

2.3. The Lands Act ............................................................................................. 12

2.4. Circular No. 1 of 1985 ................................................................................ 14

2.5. Effects of tenure conversion ....................................................................... 16

2.6. The Lands Tribunal Act .............................................................................. 18

2.7. Occupation of vacant land ........................................................................... 20

CHAPTER 3

INSTITUTIONAL FRAMEWORK UNDER CUSTOMARY TENURE

3.1. Introduction ................................................................................................. 21

3.2. Institute of Chiefs ........................................................................................ 23

3.3. Local authorities .......................................................................................... 26

3.4. Ministry of Lands ........................................................................................ 28

v

CHAPTER 4

ANALYSIS OF HOW CUSTOMARY LAND IS ADMINISTERED

4.1. Introduction ........................................................................................... 31

4.2. Defects in the legal framework ............................................................. 32

4.3. Defects in the institutional framework .................................................. 36

4.3.1 Chiefs ........................................................................................... 36

4.3.2 Local Authorities ......................................................................... 37

4.3.3 Ministry of Lands ......................................................................... 37

4.4. The need for an effective customary land administration in Zambia ... 38

CHAPTER 5

CONCLUSIONS AND RECOMMENDATIONS

5.1. Conclusions ........................................................................................... 41

5.2. Recommendations ................................................................................. 47

Bibliography ......................................................................................... 51

vi

TABLE OF STATUTES

Land Acquisition Act Chapter 189 of the Laws of Zambia

Land (Conversion of titles) Act 1975

Land (Conversion of titles) (Amendment) Act No. 2 of 1985

Lands Act of 1995 Chapter 189 of the Laws of Zambia

Administrative Circular No. 1, of 1985

The Zambia (State Lands and Reserves) Orders, 1928 to 1964

The Zambia (Trust Land) Orders, 1947 to 1964;

Constitution of Zambia, Chapter 1 of the Laws of Zambia

Statutory Instrument No. 7 of 1964

Gazette Notice No. 1345 of 1975, as amended

Statutory Instrument No. 89 of 1996

Statutory Instrument No. 4 of 1989

vii

TABLE OF CASES

Makwati Vs Nkomeshya LAT/60/1997

Mwangela and Nsokoshi v Ndola City Council (2000) Z.R. 131

Robert Chimambo, Rhidah Mungomba and Adam Pope v. Commissioner of Lands,

Safari International Zambia Limited, Environment Council of Zambia and Fingus

Limited(2008) Z.R. 1

Sobhuza v. Miller and Others [1926] AC 516

Still Water Farms Limited v Mpongwe District Council, Commissioner of Lands,

Dawson Lupunga and Bautis Kapulu LAT/30/2000

Village headman Mupwaya and another v Mbaimbai Supreme Court of Zambia Appeal

No. 41 of 1999

Yengwe Farms Limited v Masstock Zambia limited the Commissioner of Lands and the

Attorney General (1999) Z.R. 65

viii

ABSTRACT

Zambia has a dual land tenure system consisting of customary tenure and leasehold

tenure. In the customary system the chiefs regulate the allocation of land. This system is

considered insecure according to western standards but works for the indigenous people.

In other words, it is this customary tenure that existed before the white settlers

introduced the English land tenure. It is in this light that the study will critically look at

the effectiveness of customary land administration in Zambia. Since access to land is a

fundamental human right for all Zambians, it is necessary that land administration and

management must be guided by transparency and accountability. It is submitted that

without an effective customary land administration, encroachment and corruption will

be the order of the day in the alienation of land.

The study urges first, the historic development of customary land tenure in Zambia. It is

inescapable that this paper gives an evaluation of the path the land administration

system has navigated starting with the colonial administration through the post-

independence land tenure reforms and legislations. This will establish the genesis of the

present day customary land administration. Furthermore, the study reveals that the

administration of customary land is hampered by the inadequacy of laws and guidelines

in the way the administration is conducted. On the other hand, the legislations that are

provided for land under customary land are not clear. This has rendered the

administration of land under customary land to be inefficient and ineffective. The study

further reveals the lack of coordination among the institutions that govern the

administration of land under customary land. This has to some extent been created by

the conflicting laws and regulations that have been put in place. It is submitted that the

laws and regulation should be clear in order to maintain an effective administration

under customary tenure.

The study will further delve on the legal and institutional framework in relation to the

administration of customary land in Zambia. There are several statutes, circulars and

notices with regard to the alienation of land under customary tenure. However, there are

no specific rules and guidelines attached to each institution highlighting the role that

they should play in the administration of customary land. This has brought about

inconsistency among the statutes that are enacted to carry out the administration of

customary land. This is the major challenge that the administration of customary land is

faced with. It is therefore in the light of this that the study suggests revision of the laws

ix

and to some extent the regulations on customary tenure so that existing customary land

reforms can be enhanced.

Additionally, the study will proved a critical analysis on how the customary land is

administered with the current legal and institution framework. The study concludes that

the inefficiencies that exist in the administration of customary land in Zambia are

mainly to lack of specific laws to carter for the customary tenure. Furthermore, it is

suggested that the specific laws on the administration of customary land be enacted and

the institutions involved in the alienation of land be restructured and decentralised in

order for them to deliver land in an effective manner for the benefit of all Zambians.

The study recommends the establishment of rural management boards that would deal

with the alienation and administration of customary land in Zambia.

1

CHAPTER 1

HISTORICAL DEVELOPMENT OF LAND ADMINISTRATION

1.1 Introduction

Land is the only natural resource hosting all human activities, thus there is a strong

demand to gain access. In the light of this, transparent land administration could

increase equitable access to land and its natural resources which is an important factor

to help reduce poverty and contribute to economic growth. Land administration can be

therefore be defined as a process of determining, recording and disseminating

information about ownership, value and use of land.

The fundamental principle of land administration is to enable an effective management

and use of land resources in a sustainable way. Moreover, an effective and transparent

land administration is not only vital to the success of land and agrarian reform, but it

can also help to meet the aspirations of the National Development Goals and the

Millennium Development Goals. These developmental agendas aim to create a

legitimate, democratic and effective system characterised by transparent institutions. It

therefore follows that, abuse of discretion by public officers who deliberately ignore to

follow guidelines and procedures, may constitute corrupt practices.

1.2 Historical development

Before the coming of the colonial government, the indigenous people of Zambia

owned land as tribal groups. As individuals, they also had pieces of land which they

owned with the permission from the local leaders who happened to be chiefs. In this

regard, permission was sort from the chief for a piece of land to be granted. There was

no exchange of money involved and as such pre-colonial societies in Zambia

considered land as a free commodity1. However, the coming of the white settlers into

the country looked at this way of life as something different and therefore introduced a

leasehold tenure. Ideally this was basically meant to separate the locals from the white

settlers. The merging of Western Rhodesia and Eastern Rhodesia in 1911 formed the

country of Northern Rhodesia2. It was at this point that the land policy made a new

twist in that the King of the United Kingdom gave authority to the British South

1 Hansungule, M., Feeney, P. and Palmer, R. (1998) Report on land tenure insecurity on the

Zambian Copperbelt, Oxfam GB, Oxford. 2 Northern Rhodesia is now the present day Zambia.

2

African (BSA) Company to govern the territory and all matter concerning land

issues3.In the colonial era land was categorised as native reserves and trust land.

However, the 1928 Northern Rhodesia Order in Council formally established areas of

crown land to be reserved for white settlement under English Land Law and reserve

areas for African occupation under customary tenure arrangements. This was done in

view of providing the natives with sufficient land and enables them to develop a full

native life. Apart from that this move enabled government to release for Europeans

other areas suitable for settlement4.

Crown Land was described as potentially or actually available land for European

settlement on an economical basis and for mining development5. It is actually

submitted that the British system of indirect rule assumed that the African land tenure

were characterised by communal and not individual rights to land. This could have

been the main reason there never existed the right of occupancy as was the case in the

crown land. It is for this particular reason that the colonial government granted chiefs

a great deal of control over the use and allocation of land and natural resources within

the tribal settings.

The native trust land was later created in 1947 for the occupation of indigenous people

as well as white settlers under certain restrictions6. For instance, a colonial policy to

safeguard and guarantee land rights as rights of occupancy, for a period of 99 years

existed and was applied to this category of land using British laws. The only

difference that existed between the reserves and the native trust land was that the

alienable interest granted to the white settlers could not exceed a period of five years.

This policy applied to white settlers contending for fertile reserve lands, but on shorter

tenure terms, if it was considered to be in the interest of the local people. On the other

hand, Crown lands were held in perpetuity as freehold lands. All lands in Zambia were

administered under such policies and English laws until independence in 1964.

3 The BSA governed the country from 1911 up to 1924 when the British Colonial Authority.

4 Legislative Council for debates, 25th November, 1930, p. 105

5 Palmer, R. (1973). Land in Zambia. In Palmer, R. (ed.), Zambian land and labour studies.

National Archives Occasional Paper No. 2 Lusaka: National Archives of Zambia: 56-66. 6 This was done through the Northern Rhodesia (Crown lands and Trust lands) order in council

3

1.3 Reserve land administration

The administration of Reserve Land was governed by the Zambia (State Land and

Reserves) Orders, 1928 to 1964. Under these orders, the land in the reserves was set

apart for the sole and exclusive use of the indigenous people of Zambia. This

provision was intended to protect the villagers and their customary rights to land7. The

president could make grants or dispositions of land to Zambians and rural councils for

periods of up to 99 years. In the case of non-natives, terms were limited to 99 years for

public purposes, 33 years for missionary societies and charitable bodies, and 5 years in

any other case8. The president was in all cases to be consulting the rural council before

making any grant. The lessee could not, without written consent of the president,

assign or sublet the leased land or appoint any person other than a native approved by

the assistant district secretary to be in charge of the land.

Also, according to the Reserve Grant Regulations, a lease could not be disposed of by

will except if law permits, that its disposal by intestacy should be governed by a law

passed by parliament, and that the land granted could not be subdivided without the

consent of the president unless a law permits. However, no such laws existed in any of

the three cases. The nature of rights and interests that could be acquired in reserves

was nowhere explicitly stated, although from the powers of the governor it was

implied that what was intended is customary tenure.

1.4 Post-independence land reforms

However, it must be noted that the attainment of independence did not make any

changes to the land categories at all. Nonetheless, there was a change of names from

crown land to state land and land vested in the President rather that the British

sovereign. This simply indicated that the powers of land alienation in native trust land

that was previously exercised by the governor were conferred upon the president.

Conversely, the distinction between the state land and the trust and reserves was

maintained. That is to say that the administration of land in Zambia continued to be

done in the same way as it was in the pre-independence era at least for a time being.

7 This is according to the Ministerial Statement in Parliament (4th August 1987) on Land

Alienation in Reserves and Trust Lands 8 section 6a.1 of the Zambia (State Land and Reserves) Orders, 1928

4

As earlier alluded to, the land policy that the colonial government left was perceived

to have some form of inequalities and there were calls to have the land policy

reviewed. Some of the problems were actually created within the crown land (now

state land9.) it was against this background that the government decided to undertake

policies and legal reforms in the system of land administration.

In order to address the inadequacies of the previous land policy government appointed

the Johnson lands commission which was mandated to examine inter alia all aspects

of land policy and administration which were inherited on independence. The Johnson

lands commission recommended the revocation of the orders in council by legislation

and be replaced with the land Administration Act. Furthermore, the commission

recommended among other things that the customary land be brought under the

provisions of the Lands Administration Act relating to the acquisition of land rights as

soon a reasonably practical.

However, these recommendations were not adopted as government felt that they were

not in line with the socialist principles which put man at the centre of development.

Thereafter, the government implemented the changes in the land policy which

categorically vested all land in the president. The policies further provided for the

conversion of all land under freehold to leasehold tenure for the duration of one

hundred years. However, the land under customary tenure was to remain as such

without being converted to leasehold these land policies were further aimed at

improving the use of agriculture land10

. These reforms were subsequently followed by

the enactment of the Land (Conversion of Titles) Act of 1975. The provisions of this

Act among other things prohibited the sale of vacant or bare land. Furthermore, the

President delegated his power in land administration to the Commissioner of Lands11

.

Further indications of the improvement on land reforms in the country were

manifested the issuance of Circular No. 1 of 1985 which made the district councils to

be responsible for land alienation on behalf of the commissioner of Lands. It is

9 Most white settlers retained back to Britain after independence thereby leave their land

vacant. There was a concern that the government should grab these pieces of land left by

absentee land lord. 10

First National Development Plan of 1968, government printers, Lusaka 11

Gazette Notice No. 1345 of 1975

5

submitted that despite all these land reforms the customary land administration

remained the same and the chiefs continued to play their role as regulators. Even

though Zambia has undergone through a number of land reforms, it must be

appreciated that these reforms cannot be carried out overnight. It is a gradual process

which requires time and perseverance. Furthermore, when land policies are formulated

new paradigms to deal with are created for a smooth delivery system to ensue.

1.5 Third Republic Land reforms

Zambia returned to a multiparty democracy in 1991 when the MMD government came

into power with of course different ideologies from that of the previous government.

Some of these ideologies were to repeal the Land (Conversion of Titles) of 1975 and

put up changes to the land administration system. In was for this reason that the law

governing the land alienation was revisited. The land reforms initiated by the MMD

government aimed at strengthening the property rights of titleholders on state land.

These land reforms were not only designed to improve on the aspect of land

administration in the country but also tackled the issue of land development. It was

necessary at this stage that most land in rural areas is opened up for development. This

meant that the land designated as customary land had to be converted to statutory land.

This change was embodied in the Lands Act of 199512

, which abolished the various

categories of land and replaced them with only two: state land, and customary land.

State land, as defined by the Act, is that and which is not situated in customary area13

.

It is governed by English law and is said to cover about 6 per cent of the total land

area in Zambia. It consists of land mainly in urban areas along the line of rail, and is

rich in nutrients and mineral deposits, and was tsetse fly free during colonial times.

Customary land, on the other hand, is held under the customs and traditions governing

land use and ownership. It is provided that no title, other than a right to use and

occupy land under customary tenure shall be valid unless it is approved by the chief

and the local authorities and a lease is given by the president14

.

12

Chapter 184 of the Laws of Zambia 13

Section 2 Ibid 14

Section 8(3) Ibid

6

Some of the strengths of the Act include the limitation of the Presidents power to

alienate customary land, and the conversion of customary land tenure to leasehold

tenure15. In doing so the governments aim was to diminish the amount of land held

under communal tenure and open up more land for investment. Whereas previously no

one could acquire title deeds (except under special provisions) in customary areas,

today anyone can obtain a title deed in such areas provided they follow stipulated

procedures. The extension of the powers of the Commissioner of Lands is to ensure a

standard system of land tenure system in order to eliminate discriminatory systems of

land holdings. Section 8(1) of the Act also establishes the Lands Development Fund to

allow council authorities to improve land for allocation to land seekers.

It is submitted that the 1995 Lands Act made significant land reforms in the country

and established the current two land tenure systems that are in the country. This was

done by amalgamation of Reserve and Trust land to one type of land to be known as

customary land. As the law on land policy stands now, customary tenure is legally

recognised by government and will continue to be customary land and no other law

can limit a citizens right to hold land under the customary setup16. However, it can

easily be converted to leasehold tenure17

. It is in this regard that in order to strengthen

the administration of customary land the law recognises the role of chiefs as regulators

of land held under customary tenure18

. Although there was a significant distinction

between the reserves and trust lands, for practical purposes the distinction does not

exist because these two categories have been grouped as one. The chiefs alienate land

to villagers for their personal use and occupation. The land is regulated by customary

laws which differ from one community to the other.

The Lands Act has also established the Lands Tribunal for settlement of land disputes

that would arise. It must however be stated that the main objective of establishing the

Tribunal was to give the public a fast-track method of resolving land disputes that is

efficient and cost-effective compared to the established judicial or court system. It is a

circuit court and can sit at any place in Zambia where there is a dispute. Nevertheless,

15

Section 8(2) Ibid 16

Section 7(1) of The Lands Act Chapter 184 of the Laws of Zambia 17

supra 18

Ibid

7

the lands tribunal is restricted to land under the Lands Act 1995. In other words the

Tribunal does not have jurisdiction to handle disputes on customary land.

Furthermore, it is observed that the land reforms in the third Republic were basically

market based and therefore put up value on land. It must be realised that prior to the

commencement of the third Republic in 1991, land in Zambia could not be bought or

sold like a commodity. The new government proposed through its land bill to privatize

land and develop land markets. Even though stakeholders rejected the bill government

quietly proceeded to make the bill law19

. This is the current Lands Act 1995. However

the main reason of enacting the Lands Act was to encourage development in rural

areas through the recognition of customary land tenure. Conversely there is need that

the customary land policy is also codified so that governing laws and procedures can

be made available to the stakeholders.

1.6 Background of customary tenure

In the pre-colonial days, there existed only one form of land that was controlled by the

traditional rulers. The introduction of the English tenure in the colonial days

established different categories of land. Crown land as aforesaid was controlled by the

government and the Native Reserves was left to be controlled by the chiefs without

any changes to the existing traditional ways. This indicates that the present day

customary land has been in existence since time immemorial but was known by other

names. However, the present day customary land is the creation of the Lands Act

1995 and constitutes all land that was previously or before the commencement of the

Lands Act referred to as Reserve land and Trust land.

However, the administration of this particular category of land remains in the same

way it was right from the colonial era with minor changes. Nevertheless, customary

land is basically the land that is found in the rural parts of the country. It is sometimes

referred to as traditional land. The laws governing the granting of customary land in

practical terms continued to be interpreted in the light of the Orders of the colonial

19

Hansungule, M. (2001). The Lands Act 1995: An obstacle or Instrument of Development.

Paper prepared for the Zambia Land Alliance

8

government20

. Traditional authorities were recognized and that authority was exercised

in the person of the traditional ruler. It is therefore submitted that customary land

tenure is recognised in the country and this has been confirmed codification expressed

by the laws governing land in the country21

.

Customary lands may be indirectly held, but the allocation and use of these lands are

administered by chiefs and headmen on behalf of tribal communities22. On

customary land, titles do not exist, land taxes are not paid, and transfer and use are

governed by customary law. The vast majority of land in Zambia (ninety-four per

cent) is classified as customary23

. Just like state land customary land tenure is also

vested absolutely in the president who holds it in perpetuity for and on behalf of the

people of Zambia24

. It must be realised that, even though the colonial government

provided for the conversion of customary tenure to leasehold it did not carry much

weight simply because there was no demand for it.

The Ministry of Lands Administrative Circular No. 1, of 198525

which sets out the

procedure by which customary land could be alienated to a private person or body, has

also played a significant role in the administration of customary land in Zambia. The

Lands Act 1995 has codified the procedure therein and therefore it so stands that the

chiefs approval shall be followed by a resolution of the District Council, and finally

approval by the Commissioner of Lands for the conversion of tenure from customary

to leasehold tenure. Although the traditional rulers and traditional systems are

recognised in Zambia, there exists a limit in their role as regulators of customary land.

For instance, when the an investor acquires a piece of customary land, the chiefs

20

Until repealed by the Lands Act 1995, the Zambia (State Land and Reserves) Orders 1928

to 1964 governed the administration of Reserve Land. Under these orders, the land was set

apart for the sole and exclusive use of the indigenous peoples of Zambia, although the

President could make grants of land to Zambians and rural councils for periods up to 99

years. Under the Zambia (Trust Land) Orders 1947 to 1964, which was also repealed by the

Lands Act of 1995, the President could grant a right of occupancy of up to 99 years to a non-

Zambian and demand rent for the use of the land. 21

Supra 22

Supra 23

It must be noted however that, these statistics are based on an old evaluation and there is

need to come up with new statistics. This is due to the simple reason that a good area under

customary tenure has been converted to leasehold tenure. 24

Section 3(1) of the Lands Act, Chapter 184 of the Laws of Zambia 25

The circular is a set of instructions addressed to all provincial permanent secretaries and

district executive secretaries. It includes the forms to be used in applying for land

9

formal involvement ends at approving that particular land can be converted to

leasehold.

However, the chief has no authority to sign the conveyance as one of the parties to the

contract. The lease contract is only signed between the Commissioner of Lands (on

behalf of the President) as a leasor and the investor as the leasee. In order to provide

checks and balances in the process the chiefs recommendations are followed by the

District Councils corrective resolution. In turn the lands commissioner checks both

the chief and the District Council. However, there are some lapses that occur in the

process due to the fact that sometimes documents may take long in either the District

Councils offices or in the Commissioner of lands offices. This creates a loophole for

corruption as the investor needs things to move fast because he is in a hurry to develop

the land. It is indeed submitted that for an effective customary land administration to

be put in place, a well-articulated procedure should be codified in the either separately

or within the Lands Act itself.

1.7 Land ownership under customary Tenure

Land ownership under customary tenure in Zambia mainly vary from community to

community and this is largely accounted for by the unique historical development of

political groupings and the consequent variation of legal and institutional structures in

different polities26

. Customary land in Zambia is mostly land that is in the rural parts

of the country and partly in peri urban areas27

. The most significant feature of this

category of land is that no single person can claim to own land as a whole. This is

partly because most African societies believe that land is a communal property. This

was illustrated in the case of Sobhuza v. Miller and others28

were Viscount Haldane

stated inter alia that, the notion of individual land ownership is foreign to the native

ideas. Nevertheless, this is contrary to what is obtaining on the ground because an

individual can be found to own a large portion of land under customary tenure as long

as he has consent from the local chief.

26

Kwamena Bentsi-Enchill, Do African systems of Land Tenure Require a Special Terminology?, 1965, in Journal of African Law, Vol. 9, No. 2 p. 115 27 Customary area is defined as the areas described in the Schedules to the Zambia (State Lands and Reserves) Orders, 1928 to 1964 and the Zambia (Trust Land) Orders, 1947 to

1964; 28

[1926] AC 516

10

On the other hand, this is somehow different from what used to happen in the pre-

colonial era because people would just clear a piece of land that has never been

occupied and establish ownership. However this may be difficult to achieve today as

Sichone observes-

..this observation may not be tenable at the present day because so many factors

such as population growth, economic, social and political factors have changed with

time, and mere clearing and occupation of land does not in itself confer ownership29

.

However, ownership of customary land attracts no registration of title because of the

African belief that individual ownership of title is foreign. It actually submitted that

the acquisition and occupation of customary differs from one tribal group to another.

For instance, White observes that;

the Tonga people of the southern province of Zambia had no traditional

authorities to allocate land and the headmans only participation in the

acquisition of land is to provide information on whether or not existing rights

are enjoyed by an individual in a piece of land which another wishes to

acquire30

.

However, in most parts of Zambia chiefs and headmen play an important role of

ensuring that land under customary tenure is administered for the benefit of the

subjects. In the same vain, even the Tonga chiefs have now acquired the same role in

the administration of customary because it is now a legal requirement that the

conversion of rights from a customary tenure to a leasehold tenure shall have effect

only after the approval of the chief and the local authorities in whose area the land to

be converted is situated31

This chapter has delved on the historical development of land administration in

Zambia and has established the genesis of the present day customary land tenure. The

next chapter is devoted to discussing the legal framework under customary tenure.

29

Sichone F. (2010). The system of land alienation in Zambia: A critical analysis of the legal

and institutional framework at p.141 30

C.M.N White, Terminological confusion in African land Tenure, in Mvuga M. P., Land law and Policy in Zambia, op. cit p. 117. 31

Section 8(2) of Lands Act, Chapter 184 of the Laws of Zambia

11

CHAPTER 2:

LEGAL FRAMEWORK UNDER CUSTOMARY TENURE

2.1 Introduction

It is clear that all land in Zambia is vested in the president. It therefore follows that the

President has the powers to alienate land in the country. In doing so there is a good

number of pieces of legislation that impact directly or indirectly on the administration

of land. With regard to the administration of customary land, the Lands Act 199532

provides for the conversion of land held under customary tenure to leasehold tenure.33

The procedure for converting customary tenure to leasehold is provided for under a

Statutory Instrument which has now been incorporated under the subsidiary legislation

in the Lands Act.34

It is however observed that the enactment of the Lands Act 1995

did not make any changes to the land under customary tenure. However, every piece

of land in any customary area is recognised by the government, continues to be so and

no other law can limit a citizens right to hold land under the customary setup35. In this

regard, chiefs play a significant law in the allocation of customary land as the first

point of contact.

2.2 Procedure for converting Customary Tenure into leasehold Tenure

The process of acquiring land under customary tenure with view of converting to

leasehold tenure normally starts with the chiefs. A person who has a right to the use

and occupation of the land under customary tenure may apply to the chief of the area

where the land is situated for the conversion of such a holding into a leasehold

tenure.36

Where the chief refuses consent, the refusal is communicated to the applicant

and the Commissioner of Lands stating the reasons for refusing. In the same vain,

when the application is considered, the chief has got to indicate the period of time that

the applicant has been holding the particular land under customary tenure. Thereafter

the chief should state after consultations with the local people that the applicant is not

infringing on other persons rights. It is at this stage that the site plan prepared and

32

Chapter 184 of the Laws of Zambia 33

Section 8(1) of the Lands Act Chapter 184 of the Laws of Zambia 34

Statutory Instrument No 89 of 1996 35

Supra 36

Ibid regulation 2(a)(b)

12

endorsed by the chief. The next stage is to fill in the form for the conversion of

customary to leasehold tenure upon which the traditional leader writes consent letter to

the Council37

. In this regard, the council inspects the land, interviews the applicant and

recommend to council meeting. After approval, the council recommends to the

Commissioner of Land seeking allocation approval to ascertain availability. The role

of planning and demarcating of land in the customary area is performed by the

Department of agriculture which verifies the availability of the land being

recommended for conversion by comparing the location maps with the base maps of

the areas concerned. It should be noted however that land demarcated by the

Department of agriculture is subjected to a 14 years lease. When the Commissioner of

Lands approves the plan it is then sent to Surveyor-General for numbering and survey.

Conversely, if the land is surveyed under the Land Survey Act,38

the commissioner of

Lands can then grant a 99 years lease.

There are however various factors that are taken into consideration by the first the

council and secondly by the Commissioner of Land for the all process of acquiring

land in customary tenure to be accomplished. The most critical one is to verify

whether or not there is a conflict between customary law of the area and the Act39

.

This indicates that the council can only make recommendations to the Commissioner

of Lands if they are satisfied that there is no conflict at all. Otherwise no approval

would be given. On the other hand, the procedure takes into consideration the interest

of the community before proceeding with the conversion of customary tenure to

leasehold tenure40

. This indicates that the council has the responsibility to ascertain

any family or communal interests or rights relating to the parcel of land to be

converted.41

2.3 The Lands Act

The Act provides for the continuation of leaseholds and leasehold tenure; for the

continued vesting of land in the president and alienation of land by the President; for

37

Lands (Customary Tenure) (Conversion) Regulations, Statutory Instrument No. 89 of 1996. 38

Chapter 188 of the Laws of Zambia 39

Lands (Customary Tenure) (Conversion) Regulation 3 40

Ibid regulation 4 41

Ibid

13

the statutory recognition and continuation of customary tenure; and for the conversion

of customary tenure into leasehold.42

It is submitted that the issues of taking into

consideration the interest of the community is critical in the elimination of land

disputes. It is for this particular reason that it has been integrated in the Lands Act

1995. It follows that in an event where the consultation with the interested or affected

parties as well as traditional chiefs has not been done and then a complaint arises, it

renders the all disposing void at law. This was illustrated in the case of Village

Headman Mupwaya and Singh v Mbaimbai43

.

The facts of the case were that, the second appellant who was an Indian resident in

Zambia who was introduced to the village headman of Mupwaya village in chief

Mungules area in order for him to get a piece of land to settle on. He was given land

belonging to the respondent who inherited it from his late father. The respondent was

not consulted and therefore took up his complaint to the Lands Tribunal which upheld

his claim. The appellant then appealed to the Supreme Court. It was held by the

supreme court that failure to consult any person whose interest may be affected by the

grant as required under section 3(4) of the Lands Act was fatal. In this particular case

that Supreme Court stated inter alia that the piece of land was held under customary

tenure but the first appellant did not consult the respondent before alienating his land

to the second appellant. It was further held that since the respondent as an interested

person affected by the grant was not consulted, the law was not complied with and the

appeal failed.

In the same vain, the case of Still Water Farms Limited v Mpongwe District Council,

Commissioner of Lands, Dawson Lupunga and Bautis Kapulu44

put an emphasis on

the legal requirement of consulting interested parties with reference to section 3(4) of

the Lands Act 1995. In this particular case, the appellant company was challenging the

Lands Tribunal in favour of the four respondents which stated inter alia that allocation

of land was null and void for non-adherence to procedure by the chief. The issue to be

determined by the Supreme Court was whether or not the chief was in line with the

42

Mulolwa A. (2002) Integrated Land Delivery; Towards Improving Land Administration in

Zambia DUP 43

SCZ/41/1999 44

LAT/30/2000

14

laid down procedure when he allocated land to the appellant company without

consulting the third and the fourth respondents. The Supreme Court upheld the

Tribunals decision that failure to follow the laid down procedure in land alienation

amounts to the purported allocation being null and void.

Despite not having specific references to the procedure of land alienation in the

customary tenure, the lands Act 1995 has provided for the recognition of customary

tenure45

. However, the recognition of customary tenure does not bring about the

registration of ownership rights. This recognition is merely meant for the protection of

use and occupancy rights. This has in one way or another encouraged the chiefs who

are the regulators of customary land to concentrate on the selling of land to individuals

and organisations for monetary gain. This has eventually disadvantaged the local

people who are displaced without compensation when the customary land they have

occupied for many years has been sold and converted to leasehold tenure

2.4 Circular No. 1 of 1985

It must be noted that the Lands Act 1995 does not provide for the administrative

procedures in land alienation. However, the Act has given power to the Minister to

make regulations for the better carrying out of the provisions of the Act. The law

provides that:

(1) The Minister may, by statutory instrument, make regulations for the

better carrying out of the provisions of this Act.

(2) In particular, but without prejudice to the generality of subsection (1),

such regulations may prescribe-

(a) the terms, conditions and covenants of leases;

(b) the procedure for applying for the President's consent to any

transaction relating to or affecting land;

(c) the procedure for converting customary tenure to leasehold tenure;

(d) the procedure for applying for the renewal of a lease;

(e) the ground rent for land;

(f) fees for transactions in land; and

(g) any other matter which is to be or may be prescribed under this

Act.46

45

Section 8(1) of the Lands Act Chapter 184 of the Laws of Zambia 46

Section 31 of the Lands Act 1995 As amended by Act No. 20 of 1996

15

It is in this regard that the Statutory Instrument No. 89 of 1996 was release among

other regulations. The Circular No. 1 of 1985 also provides for the procedure on land

alienation. It was released earlier with the view of giving directions to the local

authorities as agents of the Commissioner of Lands. This was in pursuant to the policy

of decentralisation and the principle of participatory democracy. It was in the view of

this that it was decided that District Councils should participate in the administration

of land. To this effect, all District Councils were responsible, for and on behalf of the

Commissioner of Lands, in the processing of applications, selecting of suitable

candidates and making recommendations as may be decided upon by them.

The recommendations made by the District Councils are therefore invariably accepted

unless in cases where it becomes apparent that doing so would cause injustice to others

or if a recommendation so made is contrary to national interest or public policy47

.

However, the circular though being used as the main guideline in the alienation of land

under customary tenure has no legal force. This is so because it is just an

administrative document intended for district councils to follow and has no legal

binding on the Commissioner of Lands.

This was illustrated in the case of Yengwe Farms Limited v Masstock Zambia limited

the Commissioner of Lands and the Attorney General48

. The brief facts of the case

were that the appellant was given a 99 years lease for Farm No. 4890 in 1986. Initially

the appellant had applied for 10,000 hectares in the Lusaka rural area. The application

was considered by the District Council after necessary consultations with the local

chief and the people and was sent to the Commissioner of Lands. The application was

then considered by the Commissioner of Lands and the appellant was given 2,000

hectares and Title Deeds were issued. Later after obtaining the Title Deeds, the

President of the Republic of Zambia approved two farms for the 1st respondent. The

President directed that the 1st respondent be given 20,000 hectares of land.

The Commissioner of Lands however reduced the allocation to 5,000 hectares of 2,500

hectares of each farm. One of the farms encroached on Farm No. 4890. The

encroachment created took the parties to the High Court. The Commissioner of Lands

47

The circular No. 1 of 1985 48

(1999) Z.R. 65

16

directed the appellant to surrender title deeds to his farm and informed him that he (the

Commissioner of Lands) had made a mistake in allocating the appellant 2,000 hectares

in Trust Land and that the committee had only approved an allocation of 18 hectares

of land. The Commissioner of Lands relied on the contents of circular No. 1 of 1985

which restricted allocations in reserves and trust lands. However, the Supreme Court

held that the circular was not directed at the Commissioner of Lands and therefore he

was legally entitled to award more than 250 hectares of land depending on the

circumstances of each case. Nonetheless it must be noted that, the Commissioner of

Lands is bound to follow the provisions of the Lands Act dealing with customary land

tenure.

2.5 Effects of tenure conversion

The conversion of tenure was enhanced in the third republic because the government

of the day had a view that the conversion of tenure provision in the law was one of the

means to provide greater security of tenure to customary land users. Not only that but

also the means to encourage investment in agriculture production.49

However, Sichone (2003) states that:

The right to convert customary tenure to leasehold was first

introduced by the colonial administration through the Reserves and

Trust Land (adjudication of titles) Ordinance of 1962. This Ordinance

contained the grant of normal titles over land held under customary

law; however, it was never used as there was no demand to do so at

the time50

.

However, it is submitted that the reason for this enhancement was due to the growth in

population and positive progression in the socio and economic development in the

country. As earlier alluded to, customary land tenure in Zambia is legally recognised51

.

Furthermore, the conversion of customary tenure to leasehold tenure requires the

49 MMD. (1991). Movement for Multi-Party Democracy Manifesto. Lusaka: Campaign

Committee, Movement for multiparty democracy. 50 Sichone F (2003). Land Administration in Zambia with particular reference to customary Land: Paper presented at a Seminar Organized by the Zambia Land Alliance, University of

Zambia Senate Chamber, 28th June, 2008, Lusaka. 51

Supra

17

consent on the chief and the local authority in the area where the land is situated52

.This

arrangement has essentially afforded customary leaders a legalized means of

effectively resisting land alienation, which is an important factor underlying the low

rate of customary land alienation. Another legal requirement is that of consulting any

person or body whose interest might have been affected by any land alienation53

. It

therefore follows that the all procedure of conversion is legally binding and any

procedure other than the one provided for would be rendered null and void. However,

it should be noted that once land under customary tenure has is converted to leasehold

tenure, the chief has no authority or control over the administration of that particular

land.

This was illustrated in the case of Makwati v. Chieftainess Nkomeshya54

where the

facts of the case were that the appellant bought land from one Mapulanga who had

converted his land in Chieftainess Nkomeshyas areas into leasehold. The chieftainess

had given consent to the conversion as required by law. The dispute arose when the

appellant was stopped by the chieftainess from making any improvements on the land.

The chieftainess argued that the appellant had no authority to go on with developing

such area. The legal issue in this matter for the Tribunal to determine was whether the

chieftainess still had control over the land that was on title.

However, the Lands Tribunal held that from the time the title deed was issued to the

applicant the land in issue ceased to be traditional land and therefore the respondent

ceased to have control over it. It is in this regard that once the tenure is converted it

also depicts the change in the law that who apply. In this case customary law no longer

applied because it has been replaced by statutory law. Chiefs on the other hand have

argued that since the consent is sought from them in the conversion process, they

should also be at liberty to recall leasehold title and convert the land back to

customary tenure. This argument is not supported by any legal provision as the only

statutory provision with relevance to this is that which provides for the conversion of

land from customary to leasehold tenure55

.

52

Ibid 53

Ibid 54

LAT/60/1997 55

Ibid

18

The conversion of customary land to state land has created conflicts in many

customary areas of Zambia. Following the implementation of the Land Act 1995, the

government failed to pass any statutory instruments- the rules and procedures that

govern the administration of land. It has been observed in areas converted for tourism

purposes, under the premise of market based land reform that local people have lost

full access common pool resources upon which they have depended for their

livelihood.

It is submitted that the conversion of customary land to leasehold has been perceived

by many, as a tactic by the state to deprive the indigenous people of the land. In fact,

the provisions for conversion of customary land to leasehold are intended to cause the

same villagers to convert their land to leasehold. It is actually due to this perception

that some villagers are disinclined convert the customary land because once land has

been converted; they will be subjected to paying ground rent56

and also be subjected to

leasehold conditions. In any case it must be realised that the breach of these conditions

would invariably lead to seizures and may render the majority of the indigenous

people landless. It therefore follows that since Zambia has a growing economic

development as one nation, it is undoubtedly necessary to come up with laws that

would provide the set of rules on the subject of land acquisition and alienation.

2.6 The Lands Tribunal Act

The Lands Tribunal was established under the Lands Act of 1995.57

The main

objective of establishing the Tribunal was to give the public a fast-track method of

resolving land disputes that is efficient and cost-effective compared to the established

judicial or court system. It is a circuit court and can sit at any place in Zambia where

there is a dispute. It is actually realised that the jurisdiction of the Lands Tribunal has

now been straightened and harmonised with other laws on land administration.

Section 4 of the Lands Tribunal Act No. 39 of 2010 provides that:

(1) Subject to the Constitution, the Tribunal shall have jurisdiction to

hear and determine disputes relating to land and in particular-

56

Lands (Customary Tenure) (Conversion) Regulation 5 57

Section 20 of the Lands Act Chapter 184 of the Laws of Zambia

19

(a) To inquire into, and make awards and decisions in, any dispute

relating to land under the Lands Act, the Lands and Deeds

Registry Act, the Housing (Statutory and Improvement Areas) Act

or any other law;

(b) To inquire into, and make awards and decisions in, any dispute

relating to land under customary tenure;

(c) To inquire into, and make awards and decisions in, any dispute

relating to, any dispute of compensation to be paid in relation to

land under the Lands Act, the Lands Acquisition Act or any other

law;

(d) To inquire into, and adjudicate upon, any matter affecting the land

rights and obligations, under the Lands Act, or any person of the

government;

(e) To hear and determine appeals against a direction o decision of a

person in authority relating to land under the Lands Act, the

Lands and Deeds Registry Act, the Housing (Statutory and

Improvement Areas) Act or any other law;

(f) To make orders for the rectification of entries made in the Lands

Register;

(g) To make orders for the cancellation of certificates of title that it

considers to have been erroneously issued or have been obtained

fraudulently, or that it otherwise considers necessary to cancel.

(h) To make any declaration that it considers appropriate and issue

any order for the implementation of the declaration;

(i) Subject to the State Proceeding Act, to grant injunctive relief or

any other interlocutory relief that it considers appropriate; and

(j) To perform such acts and carry out such functions as may be

prescribed under any other written law.

On the basis of this Act, the Lands Tribunal now be deals with land under customary

tenure as well as statutory improvement areas. The Lands Tribunal is now at the same

level with the High Court for Zambia and its order can enforced as if it were an order

of court, if no application for the review of the order is made58

.

This Act has come as a positive stride in the administration of customary land because

disputes resolution under customary tenure has been enhanced. These provisions

therefore indicate that the operations of the Lands Tribunal shall not only be restricted

to land under statutory or leasehold land. The guiding spirit behind the functions of the

Lands Tribunal is that it would provide an alternative to the High Court. In other

58

Section 2 of the Lands Tribunal Act No. 39 of 2010

20

words, the alternative land dispute resolution mechanism is seen to be the Lands

Tribunal in both leasehold and customary tenure. It therefore follows that the decision

by the Supreme Court in the case of Mwangela and Nsokoshi v Ndola City Council59

has been overruled on the basis of this Act.

2.7 Occupation of vacant land

With regard to the occupation of vacant land the law provides that;

(1) A person shall not without lawful authority occupy or continue to

occupy vacant land.

(2) Any person who occupies land in contravention of subsection (1) is

liable to be evicted60

.

However, this piece of legislation does not provide the adequate mechanism for

enforcing this particular regulation. For instance, the starting authority in the

occupation of land under customary tenure is the chief. Conversely, most landholders

on customary tenure inherited their land parcels from their fore fathers and there are

no records that their fore father got authority from the chief to settle on the piece of

land. The problem that this section of the act has created is that, people holding land

under customary tenure normally have no documentary evidence to show that they

have authority to occupy a given piece of land.

As a result of this, there are reports that people who have been occupying a certain

piece of land have been evicted to pave way for the new investor who has bought the

land. This clearly indicate that the holding of land under customary tenure is insecure

as it has not even been safeguarded the main legal framework of the country. It is

therefore submitted that this piece of legislation can only be effective if the

registration of land right under customary tenure is legally provided for in the Act.

Therefore for as long as there is no legislation of land of customary land rights, the

defense of implied authority from local chiefs will suffice. This provision on illegal

occupation of vacant land gives no option to those occupiers who have occupied the

land throughout their lives and lives of ancestors even when land has been alienated

without regard to the interests of such people.

59

(2000) Z.R. 131 60

Section 9 of the Lands act Chapter 184 of the Laws of Zambia

21

CHAPTER 3

INSTITUTIONAL FRAMEWORK UNDER CUSTOMARY TENURE

3.1 Introduction

All land in Zambia is vested absolutely in the President who holds it in perpetuity for

and on behalf of the people of Zambia.61 All land in Zambia is administered and

controlled by the President for the use or common benefit, directly or indirectly of the

people of Zambia. This indicates that customary land just like state land is also

controlled by the President. However, Customary tenure is not expressly defined in the

Lands Act of 1995 but it provides for the recognition of customary tenure as a form of

landholding in the country. Customary land is taken to constitute all land that was

previously or before the commencement of the Lands Act referred to as Reserve land

and Trust land. In administering customary land, there are various institutions that play

important roles in Zambia.

In order to provide an effective administration for land under customary tenure the

institution framework should be well established. The institutions responsible to

customary administration should provide adequate information to the land seekers in

order to promote transparency. It is actually the writers view that availability of land

information is a vital key to enhance an effective customary land administration. Once

the institutions involved in the administration of customary land are equipped with

land information and disseminate it to the public, conflicts would be lessened. This

would ensure a transparent land administration everyone would embrace and give total

support to the chiefs who are the regulators of customary land.

However, this can only be made possible if customary land administration is totally

left to start with the chiefs and end with the with the Commissioner of Lands at the

Ministry of Lands and not the other way round. This in turn would provide a proper

customary land tenure security. Nevertheless, the question arises as to how this land

information can be made available and how it would ensure effectiveness in the

administration of customary land. The answer lies in the implementation of a well-

coordinated institutional framework. Furthermore, there should be total transparency

in the whole process. However, all these can be made available through good

61 Section 3(1) of the Lands Act, Chapter 184 of the Laws of Zambia

22

traditional governance. Thus good traditional governance is the key in the provision of

an effective customary land administration. Moreover, the main institution involved in

the administration of customary land should be located within the customary area. The

customary tenure institutional framework is well established in Zambia. These will be

discussed collectively and thereafter individually in order to ascertain their

effectiveness.

The role of ensuring that the customary land in a given locality is administered for the

benefit of the indigenous people is carried out by the Headmen and Chiefs. These are

known to have authority to administer the unwritten customary law based on their

respective tribal customs and traditions. The local authorities also have a role to play

in the administration of customary land. They receive applications from the land

seekers and make recommendations to the Commissioner of lands after evaluating

requests for the conversion of customary land to state land. However, the chief needs

to give consent before the local authorities act upon the application. The district

councils have authority to administer land within their districts and have responsibility

for land-use planning.

In the process of converting land from customary tenure to leasehold tenure, the

Ministry of Lands is the principle institutional framework responsible for land

administration and management. The current institutional arrangement places

responsibility on the Ministry of Lands to formulate and co-ordinate the

implementation of statutes related to land management in Zambia. At the central level,

the Commissioner of Lands within the Ministry of Lands exercises authority on behalf

of the President.

The establishment and function of the Commissioner of Lands are derived from

Statutory Instrument No. 7 of 1964 which has since been revoked and replaced with

Statutory Instrument No. 4 of 1989. The district councils process applications for

leases of state land and evaluate requests for the conversion of customary land to

state land. As earlier mention in the previous chapter the chiefs are the first point of

contact in the alienation of land under customary tenure. This chapter will discuss

these institutions involved in the administration of land under customary tenure.

23

3.2 Institution of chiefs

Chiefs and headmen have a definitive authority to administer unwritten customary law

based on their respective ethnic customs and traditions62

. On the other hand they also

have power and authority in land matters. However, the specific powers and authority

are generally expressed and not specific. The institution of chief which is established

by the Chiefs Act expressly provides for the functions of the chiefs as follows:

Subject to the provisions of this section, a Chief shall discharge-,

(a) the traditional functions of his office under African customary law in

so far as the discharge of such functions is not contrary to the

Constitution or any written law and is not repugnant to natural justice

or morality; and,

(b) Such functions as may be conferred or imposed upon him by this Act

or by or under any other written law.63

This indicates that the chiefs are expected by law to discharge there functions

according to the constitution and any other written law. It is in this regard that the

chiefs have the legal obligation to play in the alienation of land as provided for in the

Lands Act. As earlier mentioned, the chiefs have been mandated by the Lands Act to

be the first point of contact in the acquisition of land under customary tenure. It

therefore follows that without the chiefs consent in any alienated land, that particular

land cannot be converted to leasehold64

.

It is realised that there 73 tribal grouping in Zambia with different customs and

tradition. Furthermore, it is a fact that customary land is held under customs and

traditions governing land use and ownership. These differ from place to place and are

usually not written. However, there are common features in the various forms of

customary tenure. For instance, to obtain a title deed in customary areas; one needs to

follow the process of conversion of tenure from customary to leasehold. Titles can

only be issued when land has been converted. The process normally starts with the

identification of land through a village head or Chief.

62

Supra 63

Section 10(1) of the chiefs Act chapter 287 of the laws of Zambia 64

Supra

24

There are two categories of customary land seekers. The most prominent are the

outsiders who come to acquire customary land with the view of converting to

leasehold tenure. The other category is that of the villagers who have settled in the

area. An outsider will approach either a headman or visit the chief directly. Usually,

outsiders have particular areas in mind as they approach the chief. It is the duty of the

headman to verify if that parcel of land is occupied by the villagers or not. As soon as

the headman confirms, the request is submitted to the chief for endorsement.

The process of endorsement is basically a short interview with the applicant.

Thereafter, the chief seeks to determine the personal particulars for the applicant thus

establishing the quality of the applicant. Depending on the size of customary land

sought for, the chief may personally give a demarcation of the parcel of land. Before

the application is presented to the council, there must be a sketch plan of the land for

which application is made. This is generally done by an agricultural assistant from the

Ministry of Agriculture's Land Use Planning Office, at provincial level.

The agricultural assistant has access to a 1:50,000 topographic maps, on which the

applicant locates the land. The assistant then visits the parcel, verifies the location, and

clears a 2-4 meter strip around the boundary. Sometimes this is done in the presence of

the headman, at other times in his or her absence. This is a critical step in making sure

everyone understands which land and how much is involved. A sketch map is prepared

at the office based on the field visit and the topographic map base. The applicant will

have the sketch plan signed by the chief to confirm that he has consented. The

applicant would then take the consent letter to the council in the area where the land is

situated.

On the other hand, it must be noted that, the chief does not sell the land to the villagers

but may receive money as a token of appreciation for the land given. In most parts of

the country, however, chiefs with the assistance of headmen grant occupancy and use

rights to customary land and oversee the transfer of it between subjects65

. They

regulate common pool resources for instance; the opening and closing of grazing areas

or the cutting of thatching grass or trees and adjudicate a range of land-related

65 Brown T (2003) Contestations, confusion and corruption: Market-based land reform and local politics in Zambia.

25

disputes. Chiefs are also often the only point of contact between state officials, donors

and rural communities66

It therefore follows that without the authority of the chiefs there can be no conversion

of land from customary to leasehold tenure. This role is supported by the Lands Act

which provides that;

The conversion of rights from a customary tenure to a leasehold shall

have effect only after the approval of the chief and the local

authorities in whose area the land to be converted is situated, and in

the case of a game management area, and the Director of National

Parks and Wildlife Service, the land to be converted shall have been

identified by a plan showing the exact extent of the land to be

converted67.

The applicant then submits an application to the local authorities for further scrutiny. it

is observed that the role that the institution of chiefs play in the administration of

customary land has further been upheld by the Lands Act by providing that;

Notwithstanding subsection (3), the President shall not alienate any

land situated in a district or an area where land is held under

customary tenure-

(a) without taking into consideration the local customary law on

land tenure which is not in conflict with this Act;

(b) without consulting the Chief and the local authority in the area in

which the land to be alienated is situated, and in the case of a game

management area, and the Director of National Parks and Wildlife

Service, who shall identify the piece of land to be alienated;

(c) without consulting any other person or body whose interest might be

affected by the grant; and

(d) if an applicant for a leasehold title has not obtained the prior

approval of the chief and the local authority within whose area the

land is situated.

66

Ibid 67

Section 8(2) of the Lands Act Chapter 184 of the Laws of Zambia

26

However, it is realise that there are limitation and challenges in the chiefs functions

with regard to the administration of customary land. For instance, modern land

administration techniques require that people who are directly involved are trained in

aspects of physical planning land use, zoning, surveying and land registration skills.

Nonetheless most chiefs do not possess these qualifications. On the other hand,

numerous cases of abuse in customary land administration have been reported on,

among others, people obtaining title deeds to land in customary areas without

consulting chiefs and local councils68

.

It therefore follows that lack of the specific legal safeguards to role chiefs play in the

administration of land under customary tenure has undermined the importance of the

institution of chiefs. Furthermore, there are no institutional structures for the chiefs to

operate in. This also has contributed to the inefficiency of the chiefs operation. In

other words, the institution of chiefs is like a one man operation because there are no

committees to scrutinise the applications from land seekers that come for the

acquisition of customary land. This poses a serious challenge to the principles

transparency and accountability.

3.3 Local authorities

Local authorities are established under the Local Government Act69

. In an effort to

improve efficiency in the administration of land the government felt that the district

councils should participate in the alienation of land countrywide. Following this

development, government did not make any amendments to Land (Conversion of

Title) Act but instead, issued General Policy guidelines. It was on the basis of this

policy that the Circular No. 1 of 1985 was released to give direction to all district

councils on the procedure of land alienation.

In order to consolidate this approach, the Lands Act was enacted in 1995 and legally

recognised the local authorities in the process of converting land from customary to

leasehold tenure70

. It is worth pointing out that local authorities are involved in the

alienation of both categories of land in the country. The only difference is that, in

68 See also the Zambian Sunday Mail (27th March 2002), the Zambia Daily Mail (1st April 2002), the National Mirror (29th Dec. 4th Jan 2002). 69

Chapter 281 of the laws of Zambia 70

Ibid

27

circumstances where land is held and managed in a customary manner, the local

authorities are not directly involved. This simply indicates that they only get involved

when a person holding land under customary tenure intends to convert it to leasehold.

The authority given to the local authorities in the conversion of customary tenure to

leasehold is only limited to ensuring whether or not there is a conflict between

customary law of that area and the Lands Act71

. To recommend conversion, the

council must ensure that the chief has been consulted, that a layout plan has been

properly drawn, and that the land has been physically inspected to confirm that

settlement and other persons interests and rights have not been affected by the

approval of the application72

.

It is therefore up the satisfaction of the local authority that they make

recommendations to the Commissioner of Lands for approval. Provided that the full

Council endorse the application, the land will then be surveyed and beaconed. The

application and survey plan are then forwarded to the Commissioner of Lands who

will normally approve the application on behalf of the President and convert the land

parcel to state land. In that case the land will cease to be under the jurisdiction on the

Chief. In practice, the chiefs influence over the situation is apparently nominal. This

is a source of contention in most chiefdom. The chief however is unlike to regain

possession of the land because someone else will step in and acquire it if it is

abandoned. Accordingly, under the Lands Act of 1995, the granting of a 99-year lease

is dependent on a detailed land survey and beaconing of the land boundaries. If it is

not beaconed, only a provisional certificate of title (a 14-year lease) can be granted. At

the end of that period, the land reverts back to customary land.

It must be noted however that local authorities are not planning authorities and

therefore this function is left with the provincial planning authority73. From the

foregoing, it is clear that what the law requires in the process of converting customary

tenure to leasehold the actually consent from the chief and local authorities. Mere

consultations from both institutions cannot guarantee the conversion of tenure.

71

Supra 72

Ibid 73

The planning authorities are appointed under the Country and Town Planning Act Chapter

283 of the Laws of Zambia

28

3.4 The Ministry of Lands

Generally, land administration is one of the functions of the Ministry of lands. The

Ministry is mandated to efficiently, effectively and equitably deliver land, maintain

up-to-date land records and provide land information in order to contribute to socio-

economic development for the benefit of the Zambian People and the country74

. The

Ministry is divided into three departments namely; Lands Department, the Survey

department and the Lands and Deeds Registry Department.

Whereas the conversion of customary tenure to leasehold starts with the chief, the

Ministry of Lands puts a final touch to the conversion. The Ministry of Lands ensures

that areas required for development are properly planned by the Local Authorities and

the Department of Physical planning under the Ministry of Local government and

Housing. The Ministry formulated land policies and legal reforms. However, it is

worth mentioning that despite the Ministry of Lands being the main institution in the

administration of land in Zambia, it has no direct control of customary land

The Lands Department which is headed by the Commissioner of Lands plays a

significant role in the process of tenure conversion. While it is appreciated that all land

in Zambia is absolutely vested in the President.75

The President alone cannot

physically carry out the work of alienating land. It is in this regard that he has

delegated his powers to the Commissioner of Lands through a Statutory Instrument76

.

The Commissioner of Lands in turn has the local authorities as the agents. In order to

improve efficiency in the administration and alienation of land, the lands department

has established offices at provincial level. The provincial land officers are established

to perform the functions of granting and disposing of land subject to the directions,

supervision and control of the Commissioner of lands.77

However, there are no offices at district level even though the district councils are the

ones delegated with the role of land alienation78

. The Commissioner of Lands as the

74

Ministry of Lands Annual Report, Ministry of Lands, Lusaka 75

Ibid 76

Supra 77

Ibid 78

Despite the recognition of the existence of Provincial and District land officers through the

Statutory Instrument No. 4 of 1989, there are no existing structures at district level

29

head of this department makes grants and dispositions of land to any person subject to

the special and general directions of the Minister responsible for land. It is actually

this department that executes state leases on behalf of the President in whom land is

vested. This authority is specifically bestowed on the commissioner of Lands by the

President through delegation under the Statutory Functions Act.79

This Act provides

that;

No person may delegate a statutory function with which he is vested

unless he is expressly so authorised by the Act by or under which such

function was conferred or imposed:

Provided that the President, the Vice-President, a Minister, the

Secretary to the Cabinet, the Attorney-General or a Deputy Minister

may, subject only to section six, by writing under his hand, delegate to

any other person any statutory function with which he is vested80.

It is therefore by virtue of the second limb of the Statutory Functions Act that has

legally given the powers to the President to delegate the day to day administration of

land matters to the commissioner of Lands in the Ministry of Lands81

. This indicates

that the recommendations for the conversion of tenure from local authorities go

straight to the Commissioner of Lands who approves on behalf of the president. It is

observed that the Commissioner of Lands facilitates the conversion of tenure and has

no control of any kind for land under customary tenure. This leaves the control of

customary land to the chiefs and their subject unless the land customary land is

converted to leasehold

. Furthermore, the Ministry of Lands face a lot of challenges in the facilitation of

tenure conversion. These challenges range are mainly due to under staffing,

insufficient facilities and equipment for expanding the scope of operations to the entire

country. However, the expansion and decentralisation of the functions is critical in the

provision of an effective land administration. It is realised that there is an increase in

demand for new leasehold. Therefore, action is needed to redress these shortcomings

in the Ministry of lands. The state benefits from the conversion of tenure in that it is a

79

Chapter 4 of the Laws of Zambia 80

Ibid Section5 81

Ibid

30

requirement by that once land has been converted to leasehold tenure the leasee is

obliged to pay ground rent.

Having looked at the institutions involved in the administration of customary land, it is

evident that a well-structured institutional framework is required that would provide

an efficient and effective customary land administration.

31

CHAPTER 4

ANALYSIS OF HOW CUSTOMARY LAND IS ADMINISTERED

4.1 Introduction

Land under customary tenure has been hailed to be the greatest resource and at the

same time the backbone for wealth in many communities whether urban or rural.

Nonetheless, it has not fully been utilized by the local communities to enhance its

development. This has been necessitated by various shortcomings in both the legal and

institutional frameworks. It is observed that the main legal framework for the

administration of land which is the Lands Act lacks collaboration with other statutes.

On the other hand, the institutions that are involved in customary land administration

lack coordination and this has adversely contributed to the ineffective customary land

administration in Zambia.

It is mainly