By: Lloyd M’bwana
Unequal access and lack of security tenure on land resources due to inadequacy is highly contested making it hard for redistribution or settlement and irrigation schemes which eventually has exertedpressure in many African governments to resort to land policy reforms.
Therefore, African Union (AU) Sirte declaration on land issues andcha llenges in Africa which heads of states signed in 2009 brought a relief which led into adoption of the framework and guidelines on land policy which among six principles is the prioritization of land issues in national development planning.
In this pursuit, Malawi is not exceptional on unfinished land policy reforms terrain as it has embarked on reforms process such that National Land Policy which was approved by cabinet in 2002 to address land challenges culminating in the eleven land, and land related bills now pending parliamentary approval including land, customary, registered land and physical planning bills.
The incomplete land legislations especially customary land bill which its absence is the cause of victimisation of women failure to access land resources, has given a reel way to misguided individuals, politicians and investors to take advantage of the situation to connive with District Commissioners (DC) and Traditional Authority
(T.As).
They pocket huge some of money in dubious transactions to acquire land without formally consulting their subjects who have resisted such pressure resulting into chieftaincy wrangle, fights, displacement, demonstrations, petitions, courts injunction and deaths hindering community developmental projects to take its course.
Nevertheless, the cabinet has gazetted the Land Bill 2016 on February 22, 2016 and that its expected to be tabled in the current seating of Parliament after three years the former President Joyce Banda failed to assent it into law in 2013 due to protests from chiefs, women activists (Action Aid Malawi and NGO Gender Coordination Network) describing it as the way of dealing with chiefs in administering land as the case in Tanzania while on women sides, the law was discriminatory towards women and children in accessing land resources which needed further consultations before it was passed into the law.
This is the reason The Maravi Post is giving key highlight of the bill especially on concerns which chiefs and women activists posed for President Joyce Banda unable to assent the bill into the law.
The 2016 Land Bill comprises ten Land-related bills including Land, Customary, Registered, Land Acquisitions (Amendment), Physical Planning, Land Survey, Local Government (Amendment), Malawi Housing (Amendment), Forestry (Amendment) and Public Roads.
Positive changes in the gazetted Land Bill, 2016
Women’s land rights provision The Customary Land Bill has provided for women representation in the allocation process whereby the land committee shall consist of six
other persons that out of six member three women shall be elected for them to be able exercise their rights during the land allocation process.
Provision for redressing landlessness
Those people who do not have any land now will have to ask for consideration from those who have adequete land so that during the adjudication exercise might also be registered as proprietors of some pieces of land failing which government will invoke the provisions of the lands Acquisation Act to cater for the homeless.
Harmonisation of others laws and customary law land owership The new bill has provision for minors and women to be registered as proprietors of piece of land in their own right.
Provision of skillful and knowledgeable land committee A Land Clerk will serve as a secretary of the land committee which Malawi goverment is to employ and they will require a possession of Malawi School Certificate of Education (MSCE) or its equivalent, trained in land tenure management and competent in basic map preparation and land use planning. Government will be mandated to provide relevant training that these institutions carry out their responsibilitys effectively and efficiently.
Freedom provision of joint ownership of land between spouses The Bill provides freedom for land owners to decide whether they would want to register their pieces of land as joint tenants or tenants in commons as Registered Land Act provides that every instrument made in favour of two or more persons for registration.
Establishment of Land Committes
There is a provision for the establishment of the village, GroupVillage and Traditional Land committees mandated to oversee the formalization of customary land allocations and general administration such that Traditional Authorities will have the role in land land administration and are expected to chair customary land tribunals.
Access to land by non-citizens
The Bill provides that non-Malawians are to be given a lease for not more than 50 years but the minister can also grant leases less than 50 years as currently the lease is at 21 years.
Sale of Private land to non-citizen
The bill requires any person to sale of the private land through newspaper advertisment in daily circulation in Malawi not less than 21 days before the date of sale including prices, locations and size and that upon publication Malawians will be considered first for the purchase of the land.
Sale of land to non-citizen through shares
To make sure that the land is not accessible to foreigners through the sale of shares in limited liability companies an amendment has been made to the Companies Act requiring the Registrar of Companies to furnish the Minister responsible for land matters with information regarding to the status of share holding in Malawi annually.
Acquistion of the land by Government owned by Absentee Landlords A private land held by non-Malawians for the period of two without showing any interest to develop, shall compulsory acquired by government.
Offer of Private land as gift by non-citizens
The law is clearly that no title to private land shall pass as between persons who are not citizens of Malawi by way of gift inter vivos.
Grant of Freehold land
The law provides that no person in Malawi shall be granted new freehold land in line with the provisions of section 207 of Republican Constitution which stipulates that all land and territories Malawi are vested in the Republic.
Conversion of Freehold land to leasehold land
The law provides that a holder of freehold title who had acquired the title prior to the commencement date within three years, convert the land to leasehold interest and that where a freehold title holder fails to comply at the end of those three years, the land shall be
reverted back to government as public land.
Access to land for investment purposes
The bill provides that citizens and non-citizens will be allocated land for investment purposes in accordance with the investment and Export Promotion Act, 2016. Therefore , the law furthers provides that land designated for investment purposes shall be identified, gazetted and allocated to Malawi Investment and Trade Centre Limited which shall create derivative rights to investors.
The Land bill’s shortfalls
However, the bill is not clear as to how many pieces of land a person is supposed to own only stating that provisions shall provides sealing for acquisition of the land to control land grabbing. Not only that the law is silence on how is it going to deal with individuals that have already lost their land through grabs from
misguided politicians, business persons and investors.
