By Mordecai Mweene
CUSTOMARY land is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory land which is based on leasehold. The procedure to acquire customary land is not complicated as it is done through the village Headmen or Chiefs; this helps to accommodate vulnerable people who have no capacity to buy statutory land. It must be noted that customary land is not allowed to be sold, but in instances where it can be sold, then the procedure to convert it to statutory land is properly illustrated by law.
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It must be stated that customary land is a major resource for sustainable livelihoods for the majority of Zambians, its lack of codification and decentralised administration with limited transparency or communication between state and customary systems can lead to tenure insecurity. The management of customary land is currently extremely decentralised through chiefs and their indunas and headpersons. Within chiefdoms it is commonly perceived that land “belongs” to the chief. Although legally all customary land is vested in the President, in practice traditional authority’s exercise nearly exclusive power over customary land administration. This creates complicated relationships between the government, the chief, and his or her subjects with respect to tenure security[1].
In accordance with Article 1(1) of the Constitution of Zambia, the Constitution is the supreme law of the Republic and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency. It must be noted that with the motive to curb the issues of displacements of the indigenous people under customary land which is being experienced in various chiefdoms is actually against the Constitution of Zambia.
Further, Article 253(1) of the Constitution states that; Land shall be held, used and managed in accordance with the following principles:
(a) equitable access to land and associated resources;
(b) security of tenure for lawful land holders;
(c) recognition of indigenous cultural rites;
(d) sustainable use of land;
(e) transparent, effective and efficient administration of land;
(f) effective and efficient settlement of land disputes;
(g) river frontages, islands, lakeshores and ecologically and culturally sensitive areas:
(i) to be accessible to the public;
(ii) not to be leased, fenced or sold;
(iii) to be maintained and used for conservation and preservation activities; and
(h) investments in land to also benefit local
(i) plans for land use to be done in a consultative and participatory manner.
Whereas Article 254(1) of the Constitution states that; Land shall be delimited and classified as State land, customary land and such other classification, as prescribed. The President may, through the Lands Commission, alienate land to citizens and non-citizens, as prescribed[2].
The Lands Act: The Lands Act was enacted in 1995 to provide a framework for the regulation and governance of land administration. The Lands Act vests all land in the President, and explicitly recognises both leasehold tenure and customary tenure, stating that “every piece of land in a customary area which immediately before the commencement of the Lands Act was vested in or held by any person under customary tenure (Reserves and Trust land) shall continue to be so held, and recognised and any provision on the Lands Act or any other law shall not be construed as to infringe any customary right enjoyed by that person before the commencement of the Lands Act.” However, while the Lands Act recognises customary land tenure, it also states that in instances where formal law and customary tenure are in conflict, the formal takes precedence[3].
Consequently, Zambia has recently experienced an increase in large-scale land acquisition (considered to be an acquisition of over 1,000 hectares). Such acquisitions have been driven by the interests of local and foreign investors including government in agriculture, mining, tourism, and peri-urban and urban development.
This has led to displacement of customary landholders in various parts of the country, including Solwezi, Mpika, Choma, Mazabuka, Kitwe, Mansa, and Lusaka. Zambia currently does not have consolidated legislation or policies that regulate compensation and resettlement for displaced communities, leaving those impacted with limited ability to negotiate and receive adequate compensation and resettlement assistance, though a Resettlement Policy was adopted in 2016. International standards such as the World Bank Guidance Note on Resettlement and Compensation, the International Finance Corporation Guidelines, and Food and Agriculture Organisation Guidelines have been referred to in incidences of compensation and resettlement of communities faced with displacement[4].
Zambian law does not fully protect the property rights of customary landholders. There are gaps in key pieces of legislation such as the Constitution and the Lands Act. Though domestic law may not fully protect these rights, there are various international instruments to which Zambia as a party should protect the interests of community members and give legal status to customary tenure. Examples of international agreements to which Zambia is a party that are relevant to land and property rights includes: the Universal Declaration on Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESR), and the International Covenant on Civil and Political Rights (ICCPR),the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
As a member state of the United Nations, Zambia has signed and ratified these and other international and regional instruments; however, most of the provisions of these instruments have not been domesticated into national law but are considered part of a separate legal system. Domestication would require Zambia to incorporate the provisions of these multilateral and bilateral treaties into either existing legislation or to use them as the basis of new legislation to give these treaties the force of domestic law[5].
Zambia’s laws relating to land in customary areas are currently insufficient to guide an effective administration system. Laws relating to resources, like wildlife and forests, are not well harmonised with the laws that govern customary land administration, creating ambiguities across different areas within customary land. Additionally, guidance to traditional authorities on how to manage customary land and the rights and responsibilities of Chiefs in their respective Chiefdoms is lacking.
Customary land management is not necessarily contradictory to best practices; however, there is a need for customary systems to be able to be documented and used as evidence with equal weight to state leasehold titles in court. Such communication between institutions and systems would reduce conflicts and allow for a more harmonized approach. This is one objective of the current/ongoing Land Audit. There are additional measures that could be taken to better coordinate customary land management within the legal framework, including more explicit recognition of customary rights as equal to statutory rights, and a relaxation of elements of the Surveys Act that describe how land documentation and beaconing should occur.
On the whole, however, there is nothing in the current legal framework that restricts Chiefs from administering customary land certificates[6].
The Responsibility of Chiefs and Headmen
Chiefs are expected to attract investments to their areas so that all subjects benefit from the sale of the land. Further, the interest of the natives should be primary consideration before undertaking any transaction or engagement of the land in question.
This is why His Excellence President Edgar Chagwa Lungu, clearly stated that, Chiefs as custodians of customary land should not abuse their role but to preserve the God given inheritance for their subjects.
The President further stated that local people struggle to get land through the Local Authorities and the Ministry of Lands and their only hope of accessing the land is through customary tenure.[7]
On 10th December, 2013, government issued a directive through the Minister of Lands and Natural Resources at the time Harry Kalaba to ban the sale of customary land with immediate effect. This was meant to protect the rampant sale of customary land with the view to protect the interests of the poor people.8 Ndulo9 has observed that Chiefs are everywhere in Zambia, regarded as the symbol of residuary and ultimate control of all land held by the tribal community and further that in a loose mode of speech is sometimes called its owner.
Chiefs are on top of things as owners of customary land, then they have a loud voice to stop the vice of rampant sell of the land in order to reserve it for the future generations; thus because the sale of the land has reached alarming levels if not managed, we shall experience more street kids in various towns. It must be stated that every body wants development but must be meaningful and transformative. Chiefs should change their way of disposing of land by making their subjects shareholders of the investment attracted to their area.
However, the sale of customary land has actually brought a lot of problems on the indigenous people. It is imperative to state that, sale of traditional or customary land is not forbidden but the rate at which some Chiefs, Headmen and Subjects are selling land is shocking thus, some traditional leaders have become so greedy that they are selling land indiscriminately without regard for there subjects.
There is rampant internal displacement of subjects from arable to barren land by Chiefs. This has increased poverty among the people in villages as they are unable to grow enough food for their sustenance; they have no enough grazing areas for their domestic animals.
This is a source of conflict in most of the villages among the subjects and their traditional leaders. Thus, if left unchecked, may lead to serious confusions between traditional leaders and their subjects.
FOOTNOTES
[1] Zambia Customary Land Documentation Tenure Assessment (June ,2017), Tenure and Global Climate Change (TGCC) Program p 9
[2] Amendment Act No.2 of 2016 of the Laws of Zambia
[3] Zambia Customary Land Documentation tenure Assessment (June 2017) p. 4
[4] Zambia Customary Land Documentation tenure Assessment (June 2017) p.19
[5] Ibid
[6] Zambia Customary Land Documentation tenure Assessment (June 2017) P.8
[7] www.daily-mail.co.zm/chiefs-should-stop-indiscriminatesale-of-land (Zambia Daily Mail Limited).