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Land law and land policy in Malawi
A.T.B. Mbalanje
Commissioner of Lands, Office of the President,
Lilongwe, Malawi
Introduction
Before the colonial period in Malawi, land was held communally. Land was held in trust for all the people forming the community. West uses the word "cognatic ownership" and justifies that by explaining that "the land belongs corporately to cognates who are persons claiming descent from a common ancestor" (West 1976). For the purposes of this paper, however, the term "customary" will be used.
Although there are different tribes in Malawi, which means that customs vary from one region to another, only the general pattern will be discussed for the purposes of this paper.
As stated above, land was held by the community before the Europeans came. The duty to allocate land fell upon the leader of the community. The leader allocated the land to the head of a family who, in turn, allocated it to individual family members.
Land was inheritable. In this way, a family could hold on to a piece of land indefinitely as there would be no justification to dispossess any family of a piece of land they owned except if a member of that family was accused of witchcraft-a major crime.
The family could not, however, "sell" the land as it was conceived that land was a sacred trust (Elias 1956) and not a commercial commodity- to use the modern term, it could not be alienated, that is, assigned, charged, or mortgaged. This factor makes customary systems of land tenure incompatible with modern economic practices.
The individual member of the family had the right to use any piece of land which had been allocated to him. He also had the right to exclude all others from using that piece of land. These two "rights"
It should be noted here that the second "right" only obtained when the first "right" was "vested" in the individual, that is, the right to use the land. If that right was lost, the second went with it.
Individualization
Today, the same pattern still obtains where customary land law is practiced. The head of the community would be identified as the traditional authority. Each administrative district in the country is divided into areas which are controlled by traditional authorities. Each traditional authority has a number of villages which are controlled by village headmen. Under the village headmen are family leaders. A village headman may also be a leader of his family. Under the family, there is the individual, who has the two "rights" mentioned above.
It is argued that this kind of land tenure system usually discourages investment in land improvement and limits development. The rules of customary tenure do not guarantee an individual the use of a specific plot of land. Farmers are, therefore, reluctant to make investments in the land. Since the land is not "owned" by an individual, it has no mortgage value and cannot be used as security against a long-term loan. One may wonder, therefore, whether this is a suitable system for a developing country like Malawi. Malawi's economic development depends upon agriculture. With the introduction of cash crops like tobacco and cotton, this must mean changes in tenure systems so that farmers can cultivate their land continuously for many years, as opposed to the customary land tenure system. The changes must allow for investment in land and facilitate transfer of land use between individuals. This may be achieved by tenurial changes and agrarian reforms. One way of achieving this objective is by the introduction of individualized tenure.
The proponents of individualized tenure cite the following as its advantages.
Security of investment. Individualization is said to result in security of tenure, which leads to more investment in land. Under individualized tenure, land can be used as collateral for a commercial loan, which assists individuals to purchase farm machinery and chemicals.
Economic mobility of land. Individual land tenure helps to advance the economic mobility of land, which means that land can more easily be transferred through the market to those with the best resources to use it.
Technological efficiency. Individualization supports technologically efficient increases in farm use and encourages the use of fertilizers, other chemicals, and machinery.
Critics of the individualized land tenure system, however, indicate that individualization would represent a fundamental change in the social organization of the community it is aiming at helping.
Another criticism of individualization is that it results in significant impacts on the distribution of land holdings and possibly on the distribution of income. While it would widen the scope of possible economic actions and broaden the opportunity to earn income through agriculture, it would also displace some individuals or even villagers from the land they have used for centuries. For the displaced people, the opportunity to earn a living through agriculture would be severely affected. The critics go on to say that those who would be in the best position to acquire land are those who have substantial income derived from nonagricultural activities. Those individuals have the assets to enable them to acquire land and are not necessarily the most efficient farmers.
Yet another criticism of individualization is the loss of security of economy opportunity by the peasants. The customary tenure provides security of opportunity through the guarantee of a right to earn at least a subsistence living from farming. Individualized tenure exposes the individual to the possibility of losing his land and thus losing the opportunity to farm. The guarantee of subsistence income is completely destroyed, thereby removing the only guarantee of an opportunity to earn a subsistence income.
Lastly, on the managerial side, individualization involves substantial administrative costs. Money must be devoted to the process of registration (which will be discussed later) and the determination of individual titles. Trained personnel is required as well as legislative backing and a strong administrative machinery. The process requires faultless people-clever, shrewd, well-versed in law and custom, familiar with all details of law, custom, and practice among the group concerned, absolutely independent (and often fearless), uninfluenced, and incorruptible (Christodoulou 1966).
It must be admitted that such individuals are hard to find. Coupled with the administrative costs are survey costs, which are also very high.
Need for Reform
After independence, land matters in Malawi entered a new era. The new Government fully realized that land was the country's greatest asset and lost no time in introducing legislation. As we have observed, the majority of land in the country was held under customary tenure. The methods which people used in cultivating the land were outmoded, inefficient, and mostly unproductive. The Government realized that this system of land holding sustained outmoded methods and impeded agricultural progress and the general economic advancement of the country. With this in mind, the president stated in 1967 that "our customs of holding land in this country, our methods of tilling the land in this country, are entirely out of date and totally unsuitable for the economic development of this country. Under the present method of land holding and cultivation we can never hope to develop this country economically with agriculture as the backbone of our economic development" (Hansard 1967). From then on, the Government was committed to reform. What form the reform should take remained to be decided.
It may be mentioned here that Malawi had a dual system of land law. Apart from customary tenure, Malawi received English statutory law as it existed before 11 August 1902, and the doctrines of equity with the substance of English common law as was applicable in the United Kingdom before 11 August 1 902.
Under the received English system, only a few Malawians had obtained individual titles by acquiring leases from the Government. This was to be continued and encouraged. But the English law, with all its technicalities and archaic functions as were applicable before 11 August 1902, was not suitable for Malawi. There was, therefore, a need to reform all the e pertaining to land with immediate effect.
Classification of Land
The Land Act (Cap. 57:01 ) divides land into:
Customary Land
The Land Act defines customary land as "all land which is held, occupied or used under Customary Law but does not include any public land."
Section 25 of the act provides that "all customary land is declared to be the lawful and undoubted property of the people of Malawi and is vested in perpetuity in the President for the purpose of the Act." The Act attempts to incorporate the president as a trustee as far as matters concerning customary land are concerned.
This incorporation of trust has a very important significance. It gives powers to the Government to deal with customary land as well as control it. This is done through a Government Department of Lands, whose highest official is the minister responsible for land matters in the person of the president. The minister's powers over customary land are limited by Section 5 of the Land Act, which provides that the minister may not grant a lease for customary land for an estate for a period longer than 99 years. He may not, therefore, grant freehold estates over customary land. As it will be recalled that, under customary law, land could not be permanently alienated, this section aims at achieving just that, although under Section 27 the minister may declare that any customary land becomes public land by an order published in the Gazette. But this can also revert to customary status under Section 29 when such land is no longer required for public purposes.
In practice, the minister has resorted to Section 27 more than he has to Section 29. The reason is that more customary land has been acquired under Section 27 for such public utilities as schools, hospitals, demonstration gardens, and so on, which are still for the "benefit of the community." The bestknown instances where Section 29 has been applied, that is, reversion of public land to customary status, is where the land was acquired under the Acquisition of Land for Public Purposes Act, Cap. 58:04, which will be examined below.
The Government controls the use of customary land by making control orders (Section 31 of the Land Act). By orders, regulations, directions, or instructions, the minister may make provision for regulating, managing, and controlling the use of all land other than public land or private land situated within a municipality or township. Provision may be made regulating and controlling the use of the land, the method of cultivation and growing of crops and keeping of livestock, and the general good management and conservation of natural resources. Many orders have been made under this section and are in force within many parts of the country, covering various schemes and projects.
The above provisions are very important considering the fact that customary land forms the largest bulk of the land in Malawi.
Public Land
Public land is defined by the Land Act as all land which is occupied, used, or acquired by the Government and any other land that is not customary land or private land. It includes:
Land may become public under the following conditions:
By the acquisition of customary land. The procedure is similar to the one followed when a person applies for a lease of customary land.
By the provisions of Cap. 58:04. The Acquisition of Land for Public Purposes Act empowers the minister to acquire any lands required for any public purpose (subject to payment of compensation) for an estate in fee simple or for a term of years.
Powers of re-entry. Under Section 14 of the Land Act, the minister has powers to re-enter any private land on the breach or non-observance by a lessee of any of the covenants or conditions contained or implied in his lease.
Falling-in of a lease. The act clearly defines customary land as land held, occupied, or used under customary law. If the land has been leased, on the termination of that lease, the land cannot be said to be customary land because it reverts to the Government. We have already seen the definition of public land. Such land can only revert to customary status by invoking the provisions of Section 29 of the Land Act.
Under the provisions of Section 9 of the Land Act, no right of entry into any Government land shall be implied in favour of any person, and the use and occupation of all Government land shall be controlled by the minister. This means, in effect, that no person can acquire any title over public land by prescription, that is, as understood by English law.
Private Land
Private Land is defined by the Land Act as all land which is owned, held, or occupied under a freehold title, a leasehold title, or a certificate of claim, or which is registered as private land under the Registered Land Act. The land which is registered as private land under the Registered Land Act (Cap. 58:01) will be examined when we consider the provisions of that act. Our immediate concern will be private land under a government lease and private land under a freehold title or a certificate of claim.
Leasehold Titles
We have seen above that when a lease for customary land or public land is granted, the lessee regards the title as private. He enjoys all the privileges of a freeholder provided that he does not contravene any of the covenants stipulated in the instrument. He can mortgage it or even assign it and sell the improvements thereon.
Freehold Land
Freehold land includes land held under a certificate of claim.
As has been stated above, before colonization, all land in Malawi was under customary tenure. The chief could allocate land to non-members of the community for temporary use only. As a token of appreciation, the allocatee used to give gifts to the chief by way of produce from the allocated land. This was not a price for the land as it was not a negotiable instrument at all.
The first white men to come to Malawi were mostly missionaries and traders. These men wanted land for their churches, shops, and farms. They were told that in order for them to obtain land, they should contact chiefs. When the chiefs were contacted, the Europeans were shown large tracts of land. The chiefs allocated land by using natural physical features, such as hillocks, rivers, and trees, as boundaries.
It must be emphasized here that what the African chiefs thought they were giving away was the "right" for the white man to "use" the land and not to "own" it. But the white man thought he was getting the absolute title to the land, since the African concept of non-commercial land tenure was not appreciated by him at all. There was, therefore, no meeting of the minds. Payments were considered by the chiefs as gifts, whereas the settlers considered it as the price paid for the acquisition of the land. More and more land passed to the white settlers in this way.
As no survey was carried out, boundary disputes started to appear. They became so rife that eventually the British Government stepped in. They sent Sir Harry Johnston to settle these disputes. As the claims were not supported by survey, it was difficult to be impartial.
Eventually, some claims were rejected while others were confirmed. Those claims which were confirmed had to be registered. The first of such claims was registered in September 1892. Claims continued to be registered whose consequence was to vest freehold title in the holder. When Johnston became governor of the country, he continued issuing such claims under the powers conferred upon him by the provisions of the Africa Order-in-Council, 1889, and the Foreign Jurisdiction Act, 1889. Under the same law, the governor had powers to assume control over any land for use by the Crown, whom the governor represented.
Two powers were therefore conferred upon the governor: to issue certificates of claim to land as freehold land and to declare any land to be Crown land. Both powers were foreign to the African concept of land tenure. The consequence was that the former power conferred freehold titles to the white settlers while the latter conferred land to the Crown (which was later called public land). The implications of this were enormous and led to various revolts, culminating in the 1 915 Chilembwe uprising.
Before April 1974, the Government did not have any means of monitoring dealings in freehold land. Since such monitoring was considered necessary to control freehold land in the same way as public and customary land, a bill serving this purpose was introduced in 1974. This law is incorporated in the Land Act as Section 24A.
Land Law Reforms in Malawi
The establishment of a satisfactory system of land administration is of crucial importance to a country seeking rapid development of its resources. The provision and maintenance of an adequate machinery for land records is a major element in any system of land administration.
The absence of an effective system of land records, covering all land of economic potential, can have a direct and adverse effect on development in several ways. Proper land records are essential to stimulate and facilitate a market in land, which is essential to economic growth. Without reliable records, land cannot be conveniently offered as a security for credit and long-term loans. The Government, international agencies, and private investors, in financing housing, commercial, industrial, and farming projects, must be confident that the title to land being developed and financed is guaranteed by due process of law. Moreover, the very essence of any land tenure reform is that it should provide security of title to the landowner. Any programme of development must be based on knowledge of existing rights in land, both private and public, which in turn requires the existence of an up-to-date and unimpeachable map and record of landed property throughout the country.
Approximately 85 per cent of the land in Malawi is held under customary tenure. This has resulted in the existence of a dual system of land law, and in the absence of effective land records covering the major part of the land area of Malawi.
Malawi inherited this dual system of land law from the colonial period. The applied English law and local acts govern the tenure of a small fraction of land. The superimposition of an alien and outdated land law, the principles of which are largely irrelevant to the situation in Malawi, has brought with it all the complexities and absurdities of the English land law and has also resulted in different laws for different categories of landowners. There is no merit in retaining indefinitely a dual system of land law. Title registration is a means of unifying the law: the title registration statute could contain the substantive land law, applicable to the present-day needs of the country, including all that is essential for transactions of land free from the drawbacks of the English law and the obsolete elements of customary law.
One of the most complex problems encountered by the colonial administration was the provision and maintenance of systems of land recording which would be appropriate and adequate to the needs of each colonial territory. Malawi in colonial days had only registration of deeds, whereas in neighbouring Zambia and Zimbabwe as well as in Kenya, Uganda, and Tanzania there was a combination of both deed and title registration. A deeds registry has existed in Malawi from the early days of the British administration and is currently governed by the Deeds Registration Act (Cap. 58:02), under which more than 52,000 deeds have been registered. The basic function of the system of registration of deeds is to provide a public record of documents relating to land, but the system is open to the objection that registration does not cure any defects in the instrument or confer validity which it would not otherwise have (Section 22). Fraudulent documents may be registered in order to give an appearance of genuineness. There is no certainty that the person named as owner in a particular registered document is, in fact, the owner of the interest in the land in question. Furthermore, the descriptions of land in the deeds are not precise and, at times, it is not possible to relate the descriptions to the ground with certainty. Some registered deeds do not reflect the division of the land occasioned by inheritance. The system of registration of deeds is an incomplete system. Without an effective means of identifying parcels of land, the register of deeds is of limited use.
It is now universally recognized that registration of titles provides the best record of land rights. Registration of title is a system whereby the State maintains a register of all pieces of land, showing the relevant particulars affecting their ownership, and guarantees these particulars as correct.
The three legal instruments, by virtue of which the conversion of the system of deeds registration and of customary tenure to that of registered titles has been embarked on in Malawi, are the following acts:
The Registered Land Act (Cap. 58:01)
The Malawi Registered Land Act is largely based on the Kenya Registered Land Act 1963, which has been adopted in many other countries. It was enacted in 1967 and was amended by the Registered Land Amendment Act 1970 and the Adjudication of Title Act 1971. It established a complete code of property law, which provides the machinery for registration as well as all that is considered necessary for the practical needs of land owners in regard to security and proof of title, and the creating and transfer of interest in land. It is not purely procedural but also provides the substantive law needed for land dealing. This replaces the archaic and often complicated provisions of the English land law applicable to unregistered land.
The act specifically provides for the respective rights and remedies of the borrower and lender, and of the lessor and lessee. Under Section 24, the registration of a person as a proprietor confers on him the rights of ownership of that land as private land, and this for freehold abolishes the concept of tenure and estate so that the proprietor holds allodially and not in fee simple. The ownership is not an estate in land but is absolute ownership, resulting in the abolition of legal and equitable owners and the creation of registered proprietor of land. Out of this "absolute ownership" can be created certain registrable rights in land. These are leases, charges, profits, and restrictive agreements. The vesting provisions contained in Section 24 and the rights of the proprietor set out in Section 25 are the key provisions which make the register the final and only proof of title and introduce the indefeasibility of title. With the exception of overriding interests, all material particulars affecting the title to land are fully revealed to any person merely by a perusal of the register, which is maintained and warranted by the State. The register is at all times the final authority and the State accepts responsibility for the validity of transactions, which are effected by making an entry in the register, and only by this means. A simple procedure with simple forms is provided in the act. In fact, registration of title under the provisions of the act offers a system of conveyancing which is complete in itself and, in so doing, it dispenses with the need for skilled conveyancers.
The Registered Land Act became operational in 1972 when the first land registry was opened in Lilongwe to deal primarily with land titles in the Lilongwe Land Development Programme area. This area covered over a million acres of land held under customary tenure. At the end of 1981, over one quarter of the area was registered under the provisions of the Registered Land Act.
In 1974, the application of the act was extended to the capital city area in Lilongwe, where the capital city of Lilongwe land registry was established, covering a registration district of approximately 87 square miles at present.
Adjudication of Title Act (Cap. 58:05)
In 1971, the Adjudication of Title Act was passed. The objects of the act are to provide for the adjudication of rights and interests in land, other than customary land, and to enable such adjudicated titles over land to be entered in the land register established under the provisions of the Registered Land Act. The adjudication of such documentary titles over land, not being customary land, is a part of the process of the conversion from deeds registration to registration of titles.
Customary Land (Development) Act 1967 (Cap. 59:01 )
Almost the whole procedure and administrative provisions, including the declaration of areas, appointment of officers, notices, and so on, of the above-mentioned act and the Adjudication of Title Act are virtually identical except for the appointment and functions of the land committees. Further, the word "allocation" is used in substitution for "adjudication" in order to emphasize the redistributive rather than the adjudicative aspect of the proceedings. The emphasis is also on development, as the title of the act indicates, rather than adjudication. The act gives full power for the redistribution of land, but in practice the allocation process is based on the land which was previously used under custom.
Local Land Boards Act 1967
There is only one local land board at present in Malawi. This deals with all land matters arising within the Lilongwe Land Development Programme under the Customary Land Development Act.
The land board deals with matters such as applications to change the family representative, boundary disputes, complaints about non-authorized cultivation of family land, and inspection of newly completed demarcation maps.
The issue of title to the small land owners creates a danger of agricultural indebtedness and also subjects them to all manner of unscrupulous transactions. The act is to protect the landowners and also the land from dealings which may adversely affect its use. These considerations are taken into account by the land board when considering applications for consent.
Features of Registration of Title
The objects of registration of title are to simplify, cheapen, and expedite the transfer of land, and to ensure that the land register is conclusive. Its essential features are as follows:
Registration of customary land as "family land" is possible. Such registration in the name of the family representative confers absolute ownership by mere fact of registration by virtue of the vesting provisions of Section 24 of the Registered Land Act. The section also provides that the registration of a person as proprietor of a lease vests in that person the leasehold interest described in the lease, subject to all implied and expressed agreements, liabilities, and incidents of that lease. Section 25 of the act clearly states that the rights of the registered proprietor shall be rights not liable to be defeated except as provided in the act and that they shall be free from all other unregistered interests and claims. The registered title is, of course, subject to any encumbrances or restrictions which may be shown against it in the register and to overriding interests listed in Section 27.
The aforesaid sections form the core of the system of registration of title; the sections emphasize that it is the land register which proves ownership and also that immediately a title is registered it becomes guaranteed by the Government, which is liable to recompense the registered proprietor if his title is upset: a state-guaranteed title;
The register is a public register and is not secret. A legal practitioner acting for a purchaser of registered land must apply to the land registry for an official search of the register since this search will reveal the existing state of the registered title. The only authentic record of the title to registered land recognized by law is the actual register kept at the land registry.
Conclusion
It can be seen that, since independence, Malawi has introduced a number of important innovations in the administration of its land resources, aimed at greater social justice and tenurial conditions more conducive to agricultural production and economic development. The effects of land policy must be measured over decades rather than years, and many of the initial steps taken so far must still be followed up with further work if they are to reach a fully successful conclusion. A clear path has been charted, however, and the direction of land policy in Malawi is firmly established.
References
Christodoulou, D. 1966. Basic Agrarian Structural Issues: Customary Tenures and the Needs of Agricultural Development. Food and Agricultural Organization of the United Nations, Rome.
Elias, T. O. 1956. The Nature of African Customary Law. Man chester University Press, Manchester.
Hansard. 1967. Proceedings in the Malawi Parliament, 4th session, 4 April.
West, H. 1976. "The Nature of Cognatic Systems of Tenure," Discussion paper 1. Department of Land Economy, University of Cambridge, Cambridge.