By Geoffrey Wawanya:
The question ‘who actually owns land in Malawi’ is very fundamental and this paper is an attempt to answer it in a logical manner.
There have been quite a few attempts at land reform but the present one needs everybody’s support because for the first time, land ownership has reverted back to the original owner.
The Minister of Lands recently responded to a question on who owns land in Malawi by saying it is the government.
This is correct as we are governed by a democratic system where the government is by the people and for the people. However, others would add and say land is owned by the people themselves both legally and otherwise.
Section 8 of the Land Act of 2016 says land is vested in the republic. It transferred the eminent domain, root title or ownership from the President (an individual or office in government) to the State.
The State is obviously the people. Section 7 actually states that land consists of public land and private land. Public land is further classified as public land and government land whereas private land consists of freehold land and leasehold land. In fact customary land is described as ‘unallocated public land’.
The intention of the framers of the land reform process had the intention of returning the land to the original owners, the people. In passing the 2016 Land Act and its other related Acts, Parliament achieved this intention.
Here below is a brief history of land ownership in Malawi.
Before 1891, land was owned by the people. It was acquired through several means including wars between tribes. The people owned and administered the land.
Thus, it was held communally and this was referred to as cognate ownership. Chiefs through clan heads settled all disputes and sorted out all matters to do with land. This is probably where the title ‘Gogo chalo’ originates.
Then in 1891, the colonialists came and Africans became subjects of the King of England and the land became vested in the crown.
On the ground, the settlers took the land by hook or crook and Africans lost their land. However, rural areas were left to administer land in accordance with customary traditional law.
The settlers had no permanent tenure to the land until the British brought in Sir Harry Johnston as a consultant and he brought in an English system of law to administer that part occupied by the settlers; hence, the country had a dual system of law for land administration.
Sir Johnston later became the governor of the colony and during that time the settlers were accorded freehold titles through claims.
The current situation
According to the law, one has to have title to the land they claim to own. The title could provide one with the right to exclusive use for a period of time; say five years or 99 years or 999 years.
It could also provide one with the exclusive use of the land forever. In legal terms, any title to land use for a limited period of time such as five years or 99 years or 999 years is known as a lease and is subject to the payment of rental and observance of various conditions and obligations set by the owner of the land.
The lease holder or lessee is not the owner. On the other hand, exclusive use of land forever or in perpetuity means one has title of freehold in nature and that one is free from any encumbrance whatsoever except those created by self.
Land is held privately in three forms in Malawi: leasehold, freehold and customary tenures.
Eighteen percent of the land is public and 82 percent is therefore a combination of private land and customary land. Out of this, about seven percent is held freehold land, 33 percent is leasehold land while 60 percent is held under customary tenure.
This means that out of the 82 percent of Malawians who use the land 33 percent do not actually own the land. They pay ground rent to owners who are among the seven percent freeholders and their own government or agents of government such the councils.
A controversial matter could be that it is possible that citizens may be paying rentals for the land to foreigners or foreign companies. Assuming such a thing indeed exists, it is extremely unacceptable and would require immediate remedying.
A plot in a planned area is likely to be leasehold and the land would be owned by the Ministry of Lands or the Malawi Housing Corporation (MHC) or the local councils. Citizens owning houses or plots would be mere lessees or tenants of the government and its agencies and would be paying rent to the owners which in this case would be their own government.
Occupants of rural areas, unplanned or some traditional areas or squatter settlements actually own the land or have the legal option to own the land in freehold.
In an urban area like Lilongwe, for example, imagine those owners of houses in area 47, Area 3 or Area 10 do not own the land as it is on lease and they pay ground rent and yet a house owner in Ntandire, an unplanned area, could actually own the land in freehold if Ntandire is outside the city boundary.
The same is the situation in Mzuzu and Blantyre.
The above situation can be said to need immediate action to remedy the situation and conform to the law, where land ownership is now with the citizens. The current situation is simply chaotic in the highest order and needs immediate review.
The land reform
The country has embarked on an ambitious land reform process which could be unrivalled in the world. Some 10 pieces of legislation affecting the way land is held and administered became law in March 2016 and are currently being implemented.
These pieces of legislation are spearheaded by the main Land Act which abolishes all previous land laws. Section 8 of this Act transfers the eminent domain from the President to the state.
In my understanding, it is transferring the vesting of the ownership of land from the Presidency (an individual and an office in government) to the state (the people or the public).
The process has accordingly reformed supportive legislation to ensure efficient land governance such that there will be institutional changes in roles and authority. There is even a further presidential directive to review further the law which is likely to result in a much stronger legal regime and land governance.
This, however, has implications on land ownership. Firstly, it vests ownership of the land in the people of Malawi. This means the citizenry now owns the land and therefore only freehold tenure would be in tandem with the law.
In fact, the law provides for privatisation of customary land and creates a new way of holding land known as the ‘customary estate’. This estate confers exclusive use of the land in perpetuity. Thus it is a freehold tenure type which is much superior to leasehold tenure.
Finally, citizens will be able to own land outright. It will not make any sense, therefore, to have leasehold form of tenure for any Malawian citizen. It will also not make any legal sense for state land, like the local authorities, or ministry of lands or MHC to issue any leases to Malawian citizens as they own the land.
The only way to operate for these agencies is to sell the land to recover development charges and convert existing leases to freehold status.
It follows also that non-citizens cannot hold land in freehold tenure form. So, immediately, all freeholders who are not citizens of the country should obtain citizenship or else their interests in the land get converted to leasehold form of tenure. Of course, this conversion will have international repercussions but it is doable as we have already started.
Ownership of land has not been by the citizenry ever since colonial times. Initially, all land was vested in the Queen. On independence, ownership was vested in the Presidency.
The current land reform, through the main Land Act and its subsidiary legislation, has ensured that land is now actually owned by the citizenry.
All governance institutions need to undergo necessary changes to conform to the already enacted law. This may mean drastic changes in the way land is held such as converting existing leases to freehold land certificates and freehold land certificates to leases.
Though this may be controversial, it is essential and a central part of the land reform process. It is rather against the law to have a lease for any period for land that is managed by a council or MHC for that land is owned by the people themselves unless such a lease is issued by the owners themselves.
Therefore, all leases for such land must be cancelled and be replaced by freehold title certificates.
In conclusion, I would like to appeal for immediate action as follows:
- An amendment to section 9 of the Land Act to allow for new freehold tenure, but to citizens only
- Non-citizens who hold land in freehold to become citizens within one year or else their freehold interests in land be converted to leasehold tenure
- Government and all its agencies including MHC and councils to immediately convert existing leasehold titles into freehold titles for the citizenry as proposed above
- The Malawi Human Rights Commission to take this issue on board immediately as it is about the rights of Malawians
The author is a land economist in private practice