When chiefs turn into law breakers

Rains have started fall­ing in Mudyawanthu Village, Traditional Au­thority (T/A) Malengachanzi in Nkhotakota, but Lifa Nefutala, a 35-year-old widow, cannot plant on the land her parents be­queathed to her.

This is because one tradi­tional leader has ordered that she vacates the land because chiefs have sold it to businesspersons who want to invest in commer­cial agriculture.

The departed Village Head Mudyawanthu unconditionally gave the land to her parents in 1989 and the family happily set­tled there until 2017.

In his 2019 study on custom­ary land in Malawi, Yuh-Jin Bae of the Institute of African Stud­ies at the Hankuk University of Foreign Studies in Korea estab­lished that ordinary Malawians, who live on customary land, have been suffering from land grabbing due to their weak and ill-defined land rights.

Bae found that although Ma­lawi has experienced a number of land reforms that should have contributed to strengthening customary land rights, people like Nefutala still suffer from land grabbing, including from people they call their traditional leaders.

Under the current legisla­tion, chiefs can authorise the use and occupation of any cus­tomary land within their area, in accordance with customary law, subject to the general or special direction of the Minister of Lands.

Of course, from the pre-co­lonial period until present, the chief has had authority over land, as they have controlled and distributed land to their people and allocated land and settled disputes.

The new Land Acts promote individuals’ land rights by offer­ing them a chance to apply for customary estates.

However, this is still relat­ed to agricultural development, as the new Acts aim to provide poor farmers with opportunities to strengthen land rights, there­by encouraging investment in land improvement.

But Bae foresees that the wealthy Malawians’ land rights will be secured whilst poor farmers will either work for cus­tomary estates or live in custom­ary land without securing their land rights.

And this means that a dual land system may be established within customary land, which may lead to more cases of land grabbing.

“Therefore, the Malawi Gov­ernment should separate agricul­tural development aspects and needs from the formulation or modification of land laws and policies as much as possible.

“This will help eliminate the colonial influence that led to gen­eral land grabbing and prevent the establishment of unnecessary dual land systems on customary land, which may lead to land grabbing among ordinary Ma­lawians in the future,” the report states.

A 2020 assessment by the Community Paralegal Pro­gramme of the Catholic Com­mission for Justice and Peace of the Archdiocese of Lilongwe (CCJP Lilongwe) seems to reso­nate well with Bae’s findings.

The assessment found that land -grabbing for large-scale commercial agriculture in Nk­hotakota and Kasungu is nega­tively affecting the livelihoods of the poor subsistence farmers in the two districts.

The findings of the assess­ment established that the costs to the affected communities out­weighed the benefits in that land grabbing is generally driven by a weak communal tenure legal framework and the government’s support for large-scale agro-in­vestments.

The commission is imple­menting the programme with financial support from Charles Stewart-Mott Foundation.

CCJP Lilongwe Governance Officer Mwai Sandram disclosed that their assessment revealed that players behind land grab­bing in the two districts are local elites and traditional leaders and politicians.

Sandram lamented that land acquisition processes in both districts are usually violent and arbitrary, with no compensation offered to the displaced commu­nities.

“Land acquisition here is usually destructive to people’s properties, crops and household incomes, leading to increased food insecurity and poverty among the rural poor.

“It is ironic that even though Malawi is a signatory to interna­tional land governance frame­works, there is still a disjuncture between policy and practice due to the players not complying with the statutes,” Sandram says.

Village Head Mudyawanthu confessed that his forefathers bequeathed the land to Nefuta­la’s family without conditions attached.

He said he does not have in­tentions to repossess the land his forefathers unconditionally gave to the Nefutalas.

“Our biggest problem is greed. I am a traditional leader, but I must confess here that most of our senior chiefs do not know their roles and responsibilities. I am saying this because I expect­ed our senior traditional leaders to defend, safeguard and protect the rights of their poor and mar­ginalised communities without expecting anything in return,” Mudyawanthu said.

He asked the Ministry of Local Government and Rural Development and District Coun­cils to develop deliberate mech­anisms for protecting the rights of the underprivileged people in Malawi.

“Our biggest problem now is that chiefs believe they cannot be held to account. I believe this is because our senior chiefs are ignorant about what is spelt out in the Chiefs Act.

“As such, they have become so greedy that the welfare of their needy and underprivileged communities no longer matters,” Mudyawanthu said.

By the time she granted us an interview on Sunday after, Nefu­tala had sought refuge at her im­mediate neighbour’s home.

“They have chased me out. They came two days ago to tell me to choose between life and death,” she complained.

Nkhotakota CCJP Coordina­tor Precious Rabson and chair­person for the District Tribunal Court and Benga Police Unit Officer in Charge, Kingstone Qanda, acknowledged receipt of the complaint from Nefutala and Mudyawanthu on the matter.

The tribunal is one of the structures CCJP established to resolve land disputes using tra­ditional mechanisms.

“Basically, Mudyawanthu is complaining that his side of the story was not heard. So, we,as CCJP, we are pursuing the matter with relevant authorities at dis­trict council level,” Rabson said.