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The Design and Implementation of Customary Land Reforms in Central Malawi

  • Clement Ng'ong'ola

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 Banda, emphasised during the proceedings that existing customs for holding and tilling land were outdated, wasteful and totally unsuitable for the development of a country with agriculture as the basis of the economy.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.

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1 Hansard, Proceedings of the Malawi Parliament, 4th session, 19661967, 403 and, generally, 399412.

2 Ibid.

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

4 For comments on Lugard's formulation see The Dual Mandate in British Tropical Africa, 1923, 280;Sorrenson, M. P. K., Land Reform in the Kikuyu Country, Nairobi, 1967, 9 and Rogers, M., “The Kenya land law reform programme—A model for modern Africa?” (1973) 6 Verfassung und Recht in Uebersee 5051.

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

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, 3545; and Channock, M., “Notes for an agricultural history of Malawi”, (1973) Rural Africana 2735.

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; and Kettlewell, R. W., “Agricultural change in Nyasaland: 1945–1960”, Food Research Institute Studies of Tropical Agriculture, Stanford University Vol. 5, No. 3, 276278.

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;Okoth-Ogendo, H. W. O., “African land tenure reform”, in Heyer, J., Martha, J. K. and Senga, W. (eds.), Agricultural Development in Kenya, Nairobi, 1976, 154185;Coldham, S. F. R., “The effect of registration of title upon customary land rights in Kenya”, [1978] J.A.L. 91111; and Glazier, J., “Land law and the transformation of customary tenure: the Mbeere case”, [1976] J.A.L. 3950.

10 See Simpson, R., “New land law in Malawi”, (1967) 4 J.A.A. 221228, where he discusses the origins and basic design of the Malawi statutes.

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. 4445 reports that larger committees were still appointed, although their functions were somewhat reduced under the 1968 Act.

13 Coldham, S., Registration of Title to Land in the Former Special Areas of Kenya, Ph.D., University of London, 1977, 5960.

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.

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.

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

19 Ss. 14–15 and s.22.

20 Coldham, op. cit. 6178 and Rogers, op. cit. 55.

21 Simpson, , “New land law in Malawi”, 223224.

22 S. 11(3) and 12.

23 Rogers, , op. cit. 60.

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 2627.

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

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 1517.

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

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

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.

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

37 L.L.D.P. Land Allocation Section, An Evaluation Survey of Land Allocation in the Lilongwe Land Development Programme, 11, 1974, 2123.

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.

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

42 For reviews of Chewa social structure and customary land rights see Rangeley, W., “Notes on Chewa tribal law”, (1948) l J, Nyasaland. 548 and Ibik, J. O., Restatement of African Law: 4, Malawi II, The Law of Land, Succession, Moveable Property etc., London, 1971, 1123.

43 Chirwa, , op. cit. 2829.

44 L.L.D.P., Land Allocation Section, An Evaluation Survey of Land Allocation, 1516.

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.

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. 8396, shows that committees in Kenya resolved similar disputes.

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.

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.

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;Wanda, B. P., Colonialism, Nationalism and Tradition: The Evolution and Development of the Legal System in Malawi, Ph.D., University of London, 1979, Chap. 23.

57 See, for example, Mercer, op. cit. and Blinkhorn, T. A., “Lilongwe: a quiet revolution”, (1971) 8 Finance and Development 2631.

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

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 5657; and Phipps, B., “Evaluating development schemes: problems and implications. A Malawi case study”, (1976) 7 Development and Change 479.

* LL.B. (Malawi), LL.M. (Exon) Ph.D. (London). This paper is based on research undertaken for a doctoral dissertation for the School of Oriental and African Studies, University of London. Fieldwork was undertaken between December, 1980, and July, 1981. I am grateful to Mrs. M. Rogers for her supervision and comments on an earlier draft.

The Design and Implementation of Customary Land Reforms in Central Malawi

  • Clement Ng'ong'ola

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