Wednesday, 25 July 2007

Zambian Land legal framework...

Customary Land

There are two categories of land in Zambia: State leasehold (English land law) and Customary (Customary land law), both recognized by the Lands Act No. 27 of 1995. Customary land is made up of Open Areas and GMAs – the latter provided for in the Wildlife Act of 1998.

Customary authorities (headmen under the chairmanship of a chief), may give out land to individuals under customary law with land rights acquired by residence being the most prevalent form within customary tenure, an individual obtaining land from a headmen, in consultation with a chief. Should the individual owner vacate the land, it reverts to the community. No person owns the land in the statutory sense – unless of course application is made for leasehold title, in which case the permission of the chief, the District Council, the Commissioner of Lands, and ZAWA in GMAs - and in the case of applications for areas in excess of 250 ha, the Minister of Lands, is obtained. Provisionary title of 14 years is awarded initially, expanded to a 99 year renewable lease period once cadastral surveys and other requirements are completed.

The Lands Act of 1995 provides for the recognition and continuance of customary tenure, and it provides – under section (8) 3, for the ‘right to use and occupation of land under customary tenure’. The President, in whom all land and wildlife is vested, cannot alienate customary land unless it be with a customary authority’s consent, and only after consulting affected bodies or persons, and – in the case of GMAs, ZAWA. Should land be alienated, and bankruptcy be declared by the owners, the land reverts to the state and not back to customary tenure.

Game Management Areas

GMAs were created in 1971 under the National Parks and Wildlife Act of 1968 as a planning framework for integrated community and biodiversity development within customary land, and not as another distinct category of protected state land. They are currently viewed by ZAWA as state land under their control, a view supported by their importance in providing them income from hunting leases. While this has served to hamper untrammeled alienation, it also blocks development generally – a mixed blessing.

However, no management plans of any substance have been forthcoming for GMAs and National Parks under ZAWA’s management, and no credible scientific work carried out to provide the basis for sustainable offtakes of wildlife for hunting or cropping.

The Wildlife Act makes certain legal assumptions of the control of customary land, although contradicted by both customary and statutory law (the Lands Act of 1995) and by such traditional practices under African law as contracts of agistment whereby owners of livestock are obliged to pay rental for grazing rights. ZAWA as the ‘owner’ of wildlife pays no such rental, rather extracting concession rentals and game trophy fees. Originally, 50% of concession and trophy fees were paid to CRBs, but concession fees were later reduced by an ad hoc CRB committee to 20% - in both cases 5% going to the chief. In late 2006, at a meeting held between CRBs and ZAWA, it was agreed that the income would in future be shared equally (Axon Lungu, pers. comment).
Land investment

In order to usher in investment and development to customary areas – and through PPPs for National Parks and National Forests, a number of models have been put forward in recent times:

• The Mpumba Model of Chief Mpumba’s area in the Mpika district, financed by WWF USA and implemented by Guy Scott and Rolf Shenton, where an attempt is being made to alienate land under 99 year leasehold to the community for conservation development, and;
• the Landsafe Investment Partnership Model as developed in 2002 by the author after wide consultation (then known as the Chipuna model i.e. a traditional chair), whereby investors, chiefs, Government, NGOs and CRBs form development trusts (limited by guarantee), which oversee landuse and investment plans, attract investment, and receive rentals - earmarked as development funds, into a trust account, all without alienating the land i.e. leasing land under customary, not statutory law. In addition, in order to allow customary landowners to have more security and access to credit, and to counter the increasing clamour for customary landowners to convert to leasehold tenure, something which would ultimately impair traditional culture, the imposition of a customary land registry book is mandatory. A variant of this model was adopted in;
• The African Wildlife Foundation (AWF) Kazungula Heartlands Trust models. Here AWF is reportedly implementing a community land trust system based on chiefdoms – essentially the Landsafe Trust Model, “land being designated either for development in partnership with the private sector or for conservation. Under this model, the head lease for the communal land is transferred from the chief to the trust and the trust then allocates land in a participatory manner to private sector partners for development under sub-leases. Should the sub-lease expire, the land will revert to the trust and hence the community will not lose land which is crucial to their livelihoods. The chief acts as patron to the trust and oversees its activities but is not involved in the day-to-day management of its activities.” Based on this model, each of the five chiefdoms in southern Zambia has developed such trusts.

The trust model has, in principle, now been accepted by the chiefs of Zambia – though whether they see it more as being based on statutory leases, is still unclear: “The land leased for commercial use should attract royalties and fees which will form part of the income and resources for financing administration and development projects in their areas.” However, by calling them chiefs’ trusts, infers that chiefs might take up positions on the board, which would simply perpetuate the often undemocratic hold some chiefs have over their people and their disregard for sustainable conservation, land and human rights.

Land alienations

The areas most affected by large land alienations, other than the Kafue, are the lower Zambezi (30 lodge sites alienated by Chieftainess Chiawa over 40 km of river) and the lower Luangwa where chiefs, Luembe, Mwape and Nyalugwe have all sold off customary land greatly in excess of 250 ha without the full agreement of their headmen and subjects, but with the consent of the District Councils and the Commissioner of Lands. One current case before the High Court involves Chieftainess Mwape, who sold that part of the West Mvuvye National Forest (No. 54) once under the Mwape chieftainship – even though it is now fully protected state land, the buyer receiving a 99 year leasehold title from the Commissioner of Lands. This was done despite the fact that the Luembe Conservancy Trust was negotiating a joint forest management (JFM) lease with the Department of Forestry in respect of all of the Mvuvye, as well as a memorandum of understanding with the Mwape chiefdom which would have allowed it to derive benefits from its former traditional area of ownership; and, in addition, despite the Luembe Trust assisting the Chieftainess in her efforts to reclaim another area of land alienated by her late mother to the Petauke District Council, and later obtained by a businessman. Following complaints from the community, this lease has now been cancelled by the Attorney-General on the request of the Forestry Department, the latter vowing to similarly have cancelled a lease recently issued to Royal Luembe Limited for that part of the Mvuvye once under the Luembe chieftainship. However nothing has as yet been done about it.
( Currently, the community are lobbying for the removal once again of Senior Chief Luembe on the grounds of illegally alienating community lands as well as being accused of numerous human rights violations.

Further threats to customary land emanate from those who view it as retarding development, citing the difficulty the state has in obtaining land for development from chiefs, and the problem customary landowners have in raising credit. A recent World Bank presentation on their report compiled for the Ministry of Lands on land policy, advocated that in future all customary land fall under the Ministry, with chiefs assisting the Ministry as land administrators. No consultation was carried out with customary landowners, with the now impotent Natural Resources Consultative Forum (NRCF) – the body supposedly responsible for environmental and natural resources cross-sectoral policy, with chiefs or with civil society in general.

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