Review Malawi Customary Act and Land Act: Rural masses are potential victims

Parliament reviewed and passed 10 land related laws in 2016. However, the Customary Land Act and Land Act have a sting in the tail. Under the new Customary Land Act, land owners are required to register their land so that they get legal title to the land and be protected from encroachment and other interests. The Registered Land (Amendment) Act also reinforces this requirement for the purpose of determining ownership. This is the positive side. And perhaps the only good side of the new land laws.

However, what many people do not know is that the same laws undermine the very people they are trying to protect by creating Land Committees which will now manage customary land.  For what reason(s) should committees manage customary land? And what is wrong with the current land management?

Section 4 of Customary Act states that: “Lands Committees shall be responsible for the management of all customary land in a Traditional Land Management Area.” The committees have been given sweeping powers to the extent of allocating land.

Section 14 (1) states that “a land committee shall determine a portion the customary land to be set aside as communal customary land and the intend purpose of portion.” Who is going to accept a committee to dictate their ancestral land, which they have owned for more than a century, even before colonialists came to Africa, how it should be utilised?  Why should a committee manage someone’s land if it has been registered?

It should also be noted that government has classified land as public or private. Customary Land is no longer a third category as before. Government Land and Unallocated customary land are both public land. The implication is that government can allocate idle land in rural areas because it is now public land.  And from the grapevine the previous Democratic Progressive Party was land in the north.

Freehold, leasehold and customary estate are classified as private land. According to the Land Act, “customary estate is land which is owned, held or occupied as private land within a traditional land management area and which is registered as private land under the Registered Land Act] under the management of the Land Committee.”

The Land Committee is given power under Section 6 (3) to allocate customary estate. It states that a “land committee shall not allocate land or grant a customary estate without prior approval of the relevant Traditional Authority whose approval shall not necessarily withheld” Again, why should a committee allocate or grant customary estate?

Some vulnerable groups such as the old, the weak, widows and the poor may lose land to powerful individuals and investors. One cannot rule out corruption among the Land Committee members in the management of customary land.

Malawians have for some years complained about foreign nationals from Pakistan, India, Lebanon, Burundi, Rwanda and elsewhere buying land in the cities and rural areas. This practice cannot be stopped unless the Land Act is amended.  Sections 37 and 38 of the Act allows foreign nationals to buy land in Malawi. This is a huge weakness!

If the laws are not refined, they will bring a lot of confusion and conflicts in the communities. In violent-prone areas like Euthini, axes are bound to fly in the air as people stand their ground to protect their land. One can understand why the Mzimba Heritage Association rejected the new land laws. Apart from eroding the powers of the chiefs, the weak and other vulnerable individuals will lose land to investors, corrupt individuals and powerful interest groups.

The Land Act should be amended not to allow foreigners to own land. This is a trend in many countries. These new land laws have been championed by western countries who have ensured that their interests are covered. They have argued that traditional land tenure system does not is inimical to foreign investment which is wrong perception. Foreign investors should bring their capital and team up with Malawians who should provide land upon which to set up the investment. It has to be a win-win situation.

If the Acts are left as they are, Malawians should not be surprised to wake up one day to discover that the whole country is owned by foreigners some of whom are involved in money laundering or running away from criminal prosecution in their countries.  They find Malawi a safe haven to clean up their ill-gotten money because land laws are favour them.

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