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The Design and Implementation of Customary Land Reforms in Central Malawi

Published online by Cambridge University Press:  28 July 2009

Clement Ng'ong'ola
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Extract

In 1967 the Malawi Parliament passed a set of statutes which were intended to provide a new legal framework for rural agrarian change. The President, Dr. Banda, emphasised during the proceedings that existing customs for holding and tilling land were outdated, wasteful and totally unsuitable for the development of a country with agriculture as the basis of the economy. He suggested that the main problem was the absence of individual titles:

“No one is responsible & for the uneconomic and wasted use of land because no one holds land as an individual. Land is held in common & and everybody's baby is nobody's baby at all.”

He argued that the existing laws and customs discouraged individuals and institutions from providing loans for the development of land. New laws were therefore required to ameliorate the situation:

These remarks were not completely novel; they echoed and repeated recommendations in the reports of the East Africa Royal Commission, 1953–55, and the Conference on African Land Tenure in East and Central Africa held in Arusha, Tanzania, in 1956. The defects of customary land tenure pertaining to shifting cultivation and the preponderance of group control over land holding and use which the Malawi President particularized were not the only justifications for reform. The reports suggested that tenure reforms were necessary where population explosion and shortage of land contributed to the uncontrolled emergence of land dealings; where unfixed and uncertain customary land boundaries contributed to excessive land litigation; and where succession rules led to excessive fragmentation and sub-division of holdings.

Type
Articles
Information
Journal of African Law , Volume 26 , Issue 2 , Autumn 1982 , pp. 115 - 132
Copyright
Copyright © School of Oriental and African Studies 1982

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References

1 Hansard, Proceedings of the Malawi Parliament, 4th session, 1966–1967, 403 and, generally, 399–412.Google Scholar

2 Ibid.

3 Cmd. 9475, H.M.S.O., 1955, particularly ch. 23; and see Journal of African Administration Special Supplement, 02 1956.Google Scholar

4 For comments on Lugard's formulation see The Dual Mandate in British Tropical Africa, 1923, 280;Google ScholarSorrenson, M. P. K., Land Reform in the Kikuyu Country, Nairobi, 1967, 9Google Scholar and Rogers, M., “The Kenya land law reform programme—A model for modern Africa?” (1973) 6 Verfassung und Recht in Uebersee 50–51.Google Scholar

5 Report of the Conference on African Land Tenure in East and Central Africa, p. 3, para. 13.Google Scholar

6 Kandawire, J. A. K., “The structure of the colonial system as a factor in the underdevelopment of agriculture in colonial Nyasaland”, (1975) 4 Journal of Social Science, Chancellor College, 35–45;Google Scholar and Channock, M., “Notes for an agricultural history of Malawi”, (1973) Rural Africana 27–35.Google Scholar

7 McLoughlin, P. F. M., “Land reorganisation in Malawi, 1950–60; its pertinence to current development”, in Schatz, P. (ed.), South of the Sahara: Development in African Economies, Philadelphia, 1972, 131;Google Scholar and Kettlewell, R. W., “Agricultural change in Nyasaland: 1945–1960”, Food Research Institute Studies of Tropical Agriculture, Stanford University Vol. 5, No. 3, 276–278.Google Scholar

8 Acts No. 5 to 7 of 1967, caps. 59:01, S.8:01 and 59:02, Laws of Malawi.

9 For examples of such accounts see Heyer, J., Roberts, P. and Williams, G. (eds.), Rural Development in Tropical Africa, London, 1981;Google ScholarOkoth-Ogendo, H. W. O., “African land tenure reform”, in Heyer, J., Martha, J. K. and Senga, W. (eds.), Agricultural Development in Kenya, Nairobi, 1976, 154–185;Google ScholarColdham, S. F. R., “The effect of registration of title upon customary land rights in Kenya”, [1978] J.A.L. 91–111;Google Scholar and Glazier, J., “Land law and the transformation of customary tenure: the Mbeere case”, [1976] J.A.L. 39–50.Google Scholar

10 See Simpson, R., “New land law in Malawi”, (1967) 4 J.A.A. 221–228, where he discusses the origins and basic design of the Malawi statutes.Google Scholar

11 Ibid. 223.

12 See s.9 of the Land Registration (Special Areas) Ordinance, 1959. Note that s.6 of the later Kenya Land Adjudication Act, 1968, is similar to the Malawi provision, but it provides for the appointment of committees of not less than ten persons. Glazier, J., op. cit. 44–45 reports that larger committees were still appointed, although their functions were somewhat reduced under the 1968 Act.Google Scholar

13 Coldham, S., Registration of Title to Land in the Former Special Areas of Kenya, Ph.D., University of London, 1977, 59–60.Google Scholar

14 Ss.6 and 16 of the C.L.D.A.

15 Ss.7 to 9, and Simpson, R., Land Law and Registration, Cambridge, 1976, 276.Google Scholar

16 Ss. 10 to 12.

17 S.21 of the Kenyan Land Registration (Special Areas) Ordinance, 1959, and Simpson, “New land law in Malawi”, 223.Google Scholar

18 For technical definitions of these terms see Simpson, “Land tenure: some explanations and definitions”, (1954) 6 J.A.A. 61Google Scholar and Rogers, , op. cit. 54.Google Scholar

19 Ss. 14–15 and s.22.

20 Coldham, op. cit. 61–78Google Scholar and Rogers, op. cit. 55.Google Scholar

21 Simpson, , “New land law in Malawi”, 223–224.Google Scholar

22 S. 11(3) and 12.

23 Rogers, , op. cit. 60.Google Scholar

24 Simpson, loc. cit.

25 Ss. 23–27.

26 G.N. 250/1967; the project was originally called the “Lilongwe Land Development Programme” (L.L.D.P.).

27 For a description of the other projects, see Chirwa, P. C. C., Development Constraints in Three Major Agricultural Projects of Malawi, unpublished M.Sc. dissertation, University of Wales, Aberystwyth, 1975, 7 and 26–27.Google Scholar

28 L.L.D.P., Project Completion Report, Phase III, M.A.N.R., Central Evaluation Unit, 11, 1979, 2.Google Scholar

29 S.27 and 31 of cap. 57:01.

30 U.N.D.P. (S. F.) Project Report, An Application by the Malawi Government to Develop 500,000 Acres of Land in Lilongwe District within the Central Region, Interim Report, 19 01, 1967, 4 and 15–17.Google Scholar

31 Mercer, A., “Rural development in Malawi, the quiet revolution”, Optima, (1973) 23 9;Google Scholar and I.B.R.D./I.D.A., L.L.D.P. phase II, Appraisal Report, 1971, 4.Google Scholar

32 L.L.D.P., Phase III, Project Completion Report, 1979, p. 2, para 2.4.Google Scholar

33 Information on personnel was obtained from the Allocation Section, L.A.D.P. Headquarters, Lilongwe, Malawi.

34 L.L.A.D.P., Phase III, Project Completion Report, 1979, 2.Google Scholar

35 Information supplied by the Land Allocation Section, L.A.D.P., Lilongwe.

36 Ibid.

37 L.L.D.P. Land Allocation Section, An Evaluation Survey of Land Allocation in the Lilongwe Land Development Programme, 11, 1974, 21–23.Google Scholar

38 Information supplied by Demarcation Officers. Records were also taken of all introductory meetings. They are filed in the Land Allocation Section, L.A.D.P., Headquarters, Lilongwe.

39 Records of demarcation disputes which show attitudes of customary authorities to land demarcation can be found in files 16/3L/Vols. I to V, Land Allocation Section, Lilongwe.

40 Mercer, , op. cit. 12–13; and Martin, G. G. C. (ed.), Maps and Surveys of Malawi, Cape Town, 1980, 233.Google Scholar

41 Griffiths, C. A., Land Tenure in Malawi and the 1967 Reforms, unpublished LL.M. dissertation, Chancellor College of University of Malawi, 1981, 178.Google Scholar

42 For reviews of Chewa social structure and customary land rights see Rangeley, W., “Notes on Chewa tribal law”, (1948) l J, Nyasaland. 5–48Google Scholar and Ibik, J. O., Restatement of African Law: 4, Malawi II, The Law of Land, Succession, Moveable Property etc., London, 1971, 11–23.Google Scholar

43 Chirwa, , op. cit. 28–29.Google Scholar

44 L.L.D.P., Land Allocation Section, An Evaluation Survey of Land Allocation, 15–16.Google Scholar

45 These principles were outlined at meetings held after demarcation. Minutes of such meetings are filed together with records of introductory meetings in the Land Allocation Section of the L.A.D.P. See notes 38 and 39 above.

46 Information obtained from interviews with Allocation Demarcation and Recording Officers, L.A.D.P., Lilongwe.

47 Ibid.

48 For customary law on allocation of land to “strangers” and “borrowing of gardens”, see Rangeley and Ibik, op. cit.

49 S. 16. Coldham, op. cit. 83–96, shows that committees in Kenya resolved similar disputes.Google Scholar

50 The following analysis presents only general impressions because reports of land allocation disputes were inexpertly recorded and their accuracy cannot be vouched for. These impressions are formulated from records in Files 16/3L/Vols I to V, Land Allocation Section, L.A.D.P., Lilongwe.

51 Files LP/27/66L and LP/2725/L, Land Allocation Section, L.A.D.P., Lilongwe. The rough comparison of number of committee meetings and important disputes, settled and unsettled is as follows:

Year No. of committee mettings Important disputes settled and unsettled

1969 1 –

1970 1 22

1971 – 3

1972 7 8

1973 11 17

1974 2 8

1975 – 4

1976 1 18

1977 2 33

1978 5 8

1979 2 3

1980 1 7

52 S. 11 of Land Registration (Special Areas) Ordinance, 1959; s.21 of Land Adjudication Act, 1968; and Glazier, , op. cit. 46.Google Scholar

53 These observations were recorded during the viewing period at Nakochoka Development Unit in June and July, 1981.

54 S. 24 of the Land Adjudication Act, 1968, and Coldham, , op. cit. 111.Google Scholar

55 Ss. 138 to 139 of the Registered Land Act.

56 For commendatory and approving remarks on this “new land policy” see Pachai, B., Land and Politics in Malawi, 1875–1975, Ontario, 1978, Chap. 10;Google ScholarWanda, B. P., Colonialism, Nationalism and Tradition: The Evolution and Development of the Legal System in Malawi, Ph.D., University of London, 1979, Chap. 23.Google Scholar

57 See, for example, Mercer, op. cit. and Blinkhorn, T. A., “Lilongwe: a quiet revolution”, (1971) 8 Finance and Development 26–31.Google Scholar

58 Report of the East African Royal Commission, 1953–55, p. 355, para. 28.Google Scholar

59 By July, 1981, the land control register showed that only a handful of land sales were approved by the Lilongwe Local Land Board. There is no evidence to suggest widespread dealings off the register. This phenomenon is, therefore, defying the premature assessments of the land reform programme by Brietzke, P., “Rural development and modification of Malawi's land tenure system”, (1973) 20 Rural Africana 56–57;Google Scholar and Phipps, B., “Evaluating development schemes: problems and implications. A Malawi case study”, (1976) 7 Development and Change 479.Google Scholar