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One of the notions that scholars and practitioners of land law have to grapple
with is the land reforms. This essay will outline all the land reforms the
country has gone through from the time of the BSA Company up to 2015.
The essay will begin by providing the conceptual definition of the terms land,
land reform and land tenure as espoused by various legal authorities, then it
will proceed to show how land was administered during the BSA Company
right through to 2015. It will also show how each republic has contributed to
Zambias land tenure system and any major changes to land law. The essay
will conclude with an opinion on how the challenges confronting the
application of land reforms can be resolved.
Definitions
Blacks Law Dictionary1 defines land as any ground, soil, or earth
whatsoever: as meadows, pastures, woods, moors, water, marshes, furzes
and heath. The word land includes not only the soil, but everything attached
to it, whether attached by the course of nature, as trees, herbage and water
or by the hand of man, as buildings and fences. According to the Lands Act 2
in Section 2, it defines land as any interest in land whether the land is virgin,
bare, or has improvements, but does not include any mining right as defined
under the Mines and Minerals Act in any respect of Land. MacKenzie and
Phillips3 push the argument further by stating that land from a legal point of
view, means not only the ground but also the sub soil and all the structures
and objects like buildings, trees and minerals standing or lying beneath it.
In providing the conceptual definition of the notion of land reforms, Warriner
(1969)4 states that it is the redistribution of property or rights in land for the
benefit of the landless, tenants and farm labourers. Additionally Dorner
1
H. C. Black, J. Nolan and J. Nolan-Haley, Blacks Law Dictionary 6th edn. West Publishing Company
St Paul 1990.
2
Section 2 of the Lands Act, Chapter 184 of the Laws of Zambia.
3
J. MacKenzie and M. Phillips, Textbook on Land Law, OUP, Oxford, 2012.
4
D. Warriner, Land Reform in Principle and Practice, Oxford, Clarendon Press, 1969.
(1972)5 proffers that land reforms pertain to the remodeling of tenure rights
and the redistribution of land in directions consistent with political imperatives
underlying the reforms. In pushing the argument further, Tuma (2016), in the
Encyclopedia Britannica6 postulates that, land reforms are a purposeful
change in the way in which agricultural land is held or owned, the methods of
cultivation that are employed, or the relation of agriculture to the rest of the
economy. Reforms such as these may be proclaimed by a government, by
interested groups or by revolution.
Land tenure refers to the relationship, whether legally or customarily defined,
among people, as individuals or groups, with respect to land. It is an
institution with rules invented by societies to regulate behavior. Rule of tenure
define how property rights to land are to be allocated within societies. They
define how access is granted to rights to use, control, and transfer land, as
well as associated responsibilities and restraints. In simple terms, land tenure
systems determine who can use what resources for how long, and under
what circumstances (FAO, 2006).7 Dorner (1972)8 details the concept further
by stating that any land tenure system should embody those legal and
contractual or customary arrangements whereby people in farming gain
access to productive opportunities on the land. It constitutes the rules and
procedures governing the rights, duties and liberties and exposures of
individuals and groups in the use and control over the basic resources of
land and water. Furthermore, Grover (2006) 9 proffers that land tenure is the
set of rules that determine how land is used, possessed, leveraged, sold, or
disposed of within societies. These rules may be established by the state or
by custom, and rights may accrue to individuals, families, communities or
5
Books
2016,
United
Books
P. M. Mvunga, Land Law and Policy in Zambia, Gweru; Mambo Press, 1982.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, Lusaka,
1980.
12
Royal Charter of Incorporation of the British South African Company, 29th October, 1889.
13
W. H. Langworthy, Zambia Before 1890: Aspects of Pre-Colonial History, Longman, London, 1972.
11
made it possible for land to be set aside for the natives use as tribes or tribal
groupings, but expressly provided that it should be lawful for any purpose to
alienate from the King and people of Barotse territory reserved from
prospecting (Mvunga, 1980).14 This was necessitated by the 1900 Lewanika
Concession in which King Lewanika made sure that a clause was included to
protect the natives from being displaced by the white settlers from areas of
land agreed upon in the concession (Mvunga, 1980). 15 An important
development from the 1911 Order was that, it divided land into two parts, to
wit, Barotseland and other land. While the Litunga, the King of the
Barotseland, retained his powers to administer Barotseland, other lands
became subject to the Company rule except for the provision aforementioned
that Africans would not be removed from their land save only upon inquiry
and by the order of the Administrator approved by the Commissioner. These
concessions generally granted various rights to the BSA Company, inter alia,
to search and prospect for minerals in the whole territory of the Barotse
including the surrounding territories that were subsisting on the main land.
The BSA Company went ahead to alienate and administer the land on the
basis of these concessions (Ndulo, 1987). 16 Mvunga (1980)17 opined that in
1924, an Order was introduced revoking the earlier 1911 Order in Council.
The 1924 Order took away the administration of Northern Rhodesia to the
British sovereign. Further, the 1924 Order did not vest land in the Governor
appointed to represent the British sovereign. The Governor though, was
empowered to make grants through dispositions outside Barotseland. 18 The
Council-in-Order introduced the Crown Land and Native Reserves, clearing
any doubt about which land was in the Crown. Crown Land was for the
occupation of the white settlers only. British statutory law applied to those
14
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
16
17
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
18
19
20
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System.
24
Mudenda, F. S, Land Law in Zambia: Cases and Materials, University of Zambia Unza Press,
Lusaka, 2007.
25
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
26
Barotseland North-Western Rhodesia Order in Council of 1899.
P. M. Mvunga, Land Law and Policy in Zambia, Gweru; Mambo Press, 1982.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980,
Lusaka.
29
Re: Southern Rhodesia (1919) A. C. 211.
28
Companys argument that they owned the land by virtue of the fact that they
were the first to occupy the territory. In rejecting the argument, the Privy
Council stated that in itself and by itself, occupation is not title. It went on to
assert that the Crown could only establish ownership or dominion over the
land by an express indication and such an indication should be expressed by
an Order-in-Council. The 1926 Native Reserves Commission decided that
this was a case of Nemo dat quod non habet, no one can give away what
one does not have. However, in 1970, the amendment to the constitution of
Zambia allowed uniformity in the land tenure system. The Barotse area was
put formally on par with Reserves and Trust Land elsewhere in the country
(Mvunga, 1980).30
Regarding the Barotseland, shortly before independence it was felt that
provision should be made to retain the status quo in regard to the land issue
in that area within the unitary form of government of independent Zambia.
This was achieved by the Barotse Agreement of 1964, negotiated and
entered into by the succeeding Zambian Government, on the one part and
the Litunga on the other (Mvunga, 1977). 31 The Agreement stated that, the
Litunga of Barotseland and his Council shall continue to have the powers
hitherto enjoyed by them in respect of land matters under customary law and
practice.32
Following the philosophy of Humanism, the government enacted laws that
established state control in all matters of land. Thus, this was done through
reforms announced in the Mulungushi Economic Reforms of 1968 and it
included the following clauses:
(i)
30
M. P. Mvunga, The Colonial Foundations of Zambias Land Tenure System, p. 38, NECZAM, 1980,
Lusaka.
31
M. P. Mvunga, Land Law and Policy in Zambia: An Appraisal of the Lands Acquisition Act, Ph.D.
Thesis, University of London, 1977.
32
The Barotse Agreement 1964, Cmnd. 2366, Clause 5 (2).
(ii)
(iii)
(iv)
P. M. Mvunga, Land Law and Policy in Zambia, Gweru, Mambo Press, 1982.
L. A. Wily and S. Mbaya, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
35
Dorner, P., Land Reform and Economic Development, Harmondsworth, England, Penguin, 1972.
34
down. It also nationalized idol and undeveloped land. The English system of
freehold obtaining in Crown land, now state land, and until 1969 protected in
the independence constitution was abolished (Bingham, 1993). 36 This gave
the government the much needed latitude with which to impose controls and
conditions on the rights of land holders. After the 1975 Land (Conversion of
Titles) Act, state consent had to be sought before any transaction in land
could take place. The Circular No. 1, Procedure on Land Administration
(1985), showed further resentment of land ownership by prohibiting nonZambians from acquiring land without the written permission from the
President (Bingham, 1993).37 These reforms however, brought about
unforeseen constraints, inter alia, significant restriction of the publics access
to land and property resulted in an artificial land shortage. The introduction of
the requirement for state consent brought complications in the procedures of
land acquisition, causing administrative delays and less land was brought to
productive use as those who have no capacity to develop it are legally
inhibited from selling off undeveloped plots.
In 1985, following governments concern that land was going into the hands
of foreigners at the expense of Zambian nationals, the Land (Conversion of
Titles) Act was amended to ensure that no land in Zambia would be granted,
alienated, transferred or leased to a non-Zambian (Land Act). 38 This law also
intended to protect land under customary tenure. In the same year, partly to
gain favour with the chiefs and partly in recognition of the custodianship of
customary law and rights, the government decided that the chiefs out to be
formally consulted when customary land was being granted for leasehold
purposes in terms of the Zambia (State Lands and Reserves) Orders, 1928
to 1964, and the Zambia (Trust Land) Orders, 1947 to 1964. The chiefs
powers are confirmed by the Lands Act 1995 and Circular No. 1 of 1985,
36
which is still in force. According to Roth (1995) 39, until independence, chiefs
held responsibility for all land in the Reserve and Trust areas. After
independence, the chiefs were relieved of their de jure responsibilities for
land allocation, but their de facto position probably changed very little as they
were not replaced by effective structures. The amount of traditional land that
chiefs and councils could allocate was restricted to a maximum of 250
hectares. The Lands Acquisition Act of 1990 allowed the state to expropriate
property (Wily & Mbaya, 2001).40
Land Reforms in the Current Multi-Party Democracy Era
Wily and Mbaya41 contend that in, the political situation in Zambia reverted
back to multi-party politics with the amendment of the constitution. This saw
the exit from office of the UNIP party and the ushering into power of the MMD
party. With this change of government came inevitable changes to various
policies and related laws. In addition to the change to a multi-party political
system in 1991, there was a desire by the government to speed up economic
development. And so in the MMD manifesto it was outlined among other
things that:
The MMD shall institutionalize a modern, coherent, simplified and
relevant land Law code intended to ensure the fundamental right to
private ownership of land as well as to be an integrated part of a
more efficient land delivery system. To this end, the MMD
government will address itself to fundamental land issues in
order to bring a more efficient and equitable system of tenure
conversion and land allocation in customary land; land adjudication
legislation will be enacted and coordinated in such a way that
confidence shall be restored in land investors the MMD shall
39
Roth, M. Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
40
Wily, L. A. and Mbaya S, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
41
Wily, L. A. and Mbaya S. Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
to
repossess
undeveloped
properties.
The
right
to
compensation when the state does appropriate land has been increased.
The law also saw a weakening in the 1975 laws requirement for Presidential
consent to transactions. No provision is made for informal rights in state land
(Wily & Mbaya, 2001).44 Another milestone that the 1995 Act has scored is
42
that a person shall not sell, transfer or assign any land without the consent of
the President and shall accordingly apply for that consent before doing so,
this is pursuant to Section 5 (1). There is a significant difference here
compared to the 1975 Act which required Presidential consent for any
transaction or dealings in land. The 1995 Act only requires Presidential
consent in cases of sell, transfer or assignment of land. 45
The government embarked on aggressive donor funded policy reform
exercises aimed at freeing up Customary Land and Trust Land for private
investment through leasehold title. A National Conference on Land Policy and
Legal Reform was convened in mid-1993. An amendment to the 1985 law
was drafted and provisionally approved by Cabinet in late 1993. It included a
proposal to repeal the 1975 Act and reintroduce freehold tenure. The plan
was that land would remain vested in the President and the law would enable
him to alienate land without seeking the approval of local authorities. These
measures were designed to attract foreign investment. The government
intended to ease the artificial land shortage especially along the line of rail
where most towns are domiciled (Roth, 1995).46 The MMD government set
out to effect a land policy that would embrace private ownership of land in a
free market economic environment. Thus in 1995, under duress from the
World Bank, the government passed a hastily prepared Land Act in
parliament despite some fierce resistance from local chiefs and opposition
parties in parliament (Roth, 1995).47 In order to reassure traditional leaders of
their power over Customary Land, the Act maintains that the President, in
whom all land is vested, shall not assign land governed under Customary
Tenure without consulting the chief. Leasehold Title can now be held in
Customary Land with the consent of chiefs. The same Act made it possible
for approved foreign investors, foreigners who are Zambian residents or
45
F. S. Mudenda, Land Law in Zambia: Cases and Materials, University of Zambia Unza Press,
Lusaka, 2007.
46
M. Roth, Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
47
M .Roth, Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
48
51
52
to use their land as collateral to secure credit to invest in their farms and
businesses.53
The conversion of customary tenure to leasehold was enhanced in the third
republic for the government of the day thought embedding this piece of
legislation in the law would provide some form of security of tenure to
customary land holders. It was also thought to be the means to encourage
investment in agriculture production.54 With the advent of the 1995 Act, which
allows customary landholders to convert their land into 99-year leaseholds, a
lot of customary land is being converted to leasehold at an unprecedented
scale, leaving the locals with very little or no land at all (Brown, 2003). 55 It is
because of this wholesale conversion of land that the Minister of Lands at the
time had to issue the following policy statement towards land management in
part:
I have been prompted to address August house on the subject of
customary tenure as this form of tenure has been abused. It is
important that the House is updated on the measures the ministry
is putting in place so that they can explain to the people. The
abuse has been by way of land being given to foreigners as well as
some rich Zambians and entering into agreements with persons
who are not subjects of that chiefdom, and yet it is called
Customary Tenure and should largely benefit the local people.
This is unacceptable and must stop forthwith. The following are
some of the ways in which customary tenure has been abused.
According to Land Circular No. 1 of 1985, chiefs can only allocate
land up to 250 hectares in their areas of jurisdiction. However,
there are several cases in which this provision has been flouted.
53
56
Policy Statement By Hon. Harry Kalaba, MP, Minister of Lands, Natural Resources and
Environmental Protection on Management and Administration of Customary Land in Zambia,
Mulungushi House, Lusaka, Issued on 13th December, 2013.
(b)
(c)
(d)