A stubborn Zambian Chief...

Nkomesha of the Soli is anything but stubborn: she is merely carrying out her duty as the ultimate custodian of land bequethed to her by tradition. But what happened to the Chiefdom Trusts accepted by the House of Chiefs as the way forward, a way where no customary land may be alienated to a foreigner or a Zambian, merely leased out for a certain specified time, all of it based on a trust structure encompassing the customary authority, the community, CBOs and investors? Did she not receive the Landsafe model from her colleague, Chiawa? And what is Chiawa doing by allowing - under the donor trojan horse, a community protected area in her country. Sounds like the Nsefu move once again. History tolls for thee.

A statement on Zambia's draft land policy...

The 5th National Development Plan had this to say...
It is noted that a significant cause of environmental degradation has been inadequate institutions, particularly ill-
defined property rights. This is also due to the fact that much of the land in Zambia is under traditional tenure or
‘open areas’ and administered by traditional rulers. Under the various traditional arrangements, the tenure
regimes have no clearly defined property rights since the community usually has open access to natural
resources. The dynamics of open access are the basis of the ‘tragedy of the commons’. For many years, there has
been no national land-use planning framework to specify how land should be allocated for various purposes and
what land should be reserved for different future uses at the national, provincial, and district levels.

The 1995 Lands Policy and Act are aimed at ensuring that all Zambians are afforded the same opportunity and
encouraged to access and own land under leasehold title in customary land areas. This move is seen to be
progressive in as far as putting in place a system of security of land tenure is concerned, which provides some
incentives for sound environmental protection. Progress to date has, however, been very limited on this issue.
There has also been limited private sector investment in the Natural Resources Sector in the past to stimulate
growth and development. Indigenous people and local entrepreneurs have also not, as a whole, been much
involved in investment in the Sector. Moreover, efficient and effective information management systems are key
to modern day natural resource management (NRM). Currently, the Sector lacks systematic and comprehensive
information management systems to effectively support decision-making and operations and facilitate
information dissemination. As consequence, it has been difficult to establish any credible trends in the status of
Zambia’s natural resources.

Zambia: Chiefs Pursue Title Deeds

The Times of Zambia (Ndola)
4 October 2007
Posted to the web 4 October 2007

SOME chiefs have proposed that the Government should start issuing title deeds to chiefs for the land that constitutes their chiefdoms to curb illegal squatting and boundary squabbles. Chief Nkana of Lufwayama District said that he had learnt a hard lesson of not having a title to his chiefdom where mineral benefits had not trickled down to the subjects. The motion to urge the Government to allow chiefs to obtain title deeds for their chiefdoms was moved by Chief Shaibila of the Lala people in Mkushi District and was seconded by Chief Nzamane of Chipata district. The house was being chaired by Chief Mumena of Solwezi.

Chief Nkana, who was earlier against the motion, observed that had the first Chief Nkana been clever enough to obtain title deeds for his chiefdom, the copper which was being mined on the Copperbelt could have brought great benefit to the current generation. He wondered why a chief could not have title to his customary land when his subjects were having titles to their pieces of land within the chiefdom. Chief Anananga Imwiko cautioned investors who trek to chiefdoms where they know such chiefdom had no title deeds to stop the practice because chiefs had powers to oppose any investment which was disadvantaging the local people.

In his contribution, Chief Hamusonde noted that title deeds had advantages and disadvantages.

"I am in favour of this motion. Title deeds are good to solve boundary squabbles and wrangles in chiefdoms but what I want to ask is, who is going to get the ground rates, the Government or the chiefdoms?" he asked.

Chief Mumena said the motion had generated a lot of heated debate and allowed Chief Bundabunda of Chongwe District who was against the idea, to make his contribution before allowing the motion-mover to wind up the debate. Chief Bundabunda called on his fellow chiefs to understand, "Title deed" as they debated because to his understanding, there was no need for customary land to have title deeds but that could be possible if it was State land which needed titles.

In winding up the motion, Chief Shaibila called for a review of the land policy where three titles should be issued, the municipal, customary and State title deeds to solve the problems surrounding land issues countrywide.

Zambia: people, land and wildlife...

The land is the last refuge of the poor. In Zambia, 94% of it is customary land where lie the ever depleting natural resources and the disenfranchised, living lives having little to do with the machinations of government and donor in the cities, except that is, to have the land taken away from them with the assent of government, or have the natural resources removed from it, again with the assent of government.

A research consultant laments the fact that people in the Zambezi valley have been displaced by investors, the land privatized, alienated, most of it on leasehold for 99 years - renewable for another 99 years. Yet, in order for this to happen, it had to have had the agreement of the local chief, the District Council, the Commissioner of Lands and the Zambia Wildlife Authority. Is it possible that all these arms of government, of custodial care, could have connived in the disenfranchisement of people whose claims to the land merge into the long gone past. The answer, sadly, is yes. In the land, supposedly under the care of Chief Chiawa in the Zambezi valley, some 34 lodges exist over 40 kilometers of riverfront, the land on which they stand alienated from customary landowners, for ever. Who benefited from this; and who suffers now ?

And on the land itself, the existing wildlife is ‘owned’ by the Zambia Wildlife Authority (ZAWA), despite it being supported on land belonging to customary landowners. In the 34 Game Management Areas, which are on customary land, ZAWA have given out hunting concessions, allowing safari operators to kill a certain specified quota each year, the income supposed to be shared with the community. And each year, these same animals being supposedly milked sustainably, attack villagers’ crops, and houses, killing people as well. And each year ZAWA or the Ministry of Tourism, Environment and Natural Resources laments that they are unable to compensate these villagers for the damage and mayhem which ‘their’ animals cause. ZAWA, of course, could not afford to pay compensation even if they wished to for they cannot pay their staff pensions and tax contributions; and appear – according to newspaper reports, to have had some $7.7 million dollars stolen by employees. ZAWA is bankrupt, unable to manage what funds it does receive, calling for government bailout, making ever more desperate attempts to harvest more income from safari operators and communities. Yet ZAWA does not allow communities harvesting rights to wildlife – despite it being allowed in the Wildlife Act; so the villagers poach, because they also see the ZAWA officers poaching, and so join together to exterminate the golden geese.

And what of compensation for wildlife damage? Well, this has nothing to do with the Constitution or the Wildlife Act; it is, as the foremost authority on land tenure in Zambia has to say, Profesor Patrick Mvunga, a matter of it being allowed under English Common law, that being, in essence, Zambian law. Of course, the answer here is not to foment a campaign of litigation against government on behalf of assaulted villagers, but for ZAWA to give back the ownership rights of wildlife to people – albeit under some sort of trust structure. But will they do it?

And the land does not need all sorts of reforms: it requires that it be accepted that traditional land is sacrosanct, that it can never be sold - not to a foreigner, not to a Zambian, but that its use can be sanctioned under usufruct – a simple lease arrangement.

Corrupt use of provisionally alienated customary land...

1. The Zambia Wildlife Authority (ZAWA) state that the West Petauke Game Management Area No.17 (610,000 ha) includes the Luangwa River, although for the past four years or so hippo and crocodile have been issued on quota by ZAWA to M’nyamadzi Game Ranch (Luangwa east bank) and allowed to be shot there by M’nyamadzi owners and hunters – although Mbizi game ranch to the south, do not take crocodile or hippo from the river. The Surveyor-General in the Ministry of Lands states that private land may not encroach closer than 60 m from the Luangwa, therefore how is it possible for M’nyamadzi to hunt outside its borders? No EIA by the Environmental Council of Zambia (ECZ) of the present fence construction has been carried out, nor any consultations with the local community, or the Mbeza concessionaire, or the Forestry Department as required by the Fencing Ordinance of the Agricultural Lands Act. The quotas issued are not sustainable for the area, offtakes obviously denuding the West Mvuvye National Forest to the north, the Nyimba Open area to the south and the West Petauke Hunting Concession to the west – Nyimba open area in Luembe having been set aside for use for a community game ranch under a proposed usufruct lease managed by the Luembe Conservancy Trust, and negotiated in 2004. Scrutiny of the two quota sets is evidence of corruption within ZAWA.
2. The 10, 500 ha ranch in question (property No. f/10005; certificate of title No. L9879), on a 25 year provisionary lease (only 14 year provisionary leases are allowed under the Lands Act of 1995), registered 9 March 2001, though obtained in 1998, is partially unfenced and adjoins the West Mvuvye National Forest No. 54 and customary land in the Luembe Chiefdom. For game ranchers to have ownership rights to wildlife they are required to fence and purchase the animals inside. This has not been done.
3. Customary landowners, through their Luembe Community Resource Board, applied for safari hunting quota in their open area (for onward sale to hunting outfitters), as well as for selected wildlife harvesting rights, and were refused by ZAWA. The latter is a denial of community rights, as contained in the Wildlife Act of 1998.
4. On the purchase of Mbeza Safaris by the founders of the Luembe Conservancy Trust at the end of 2004, hunting quotas for West Petauke were voluntarily lowered by the owners and the CRB, in the process invoking the precautionary principle as contained in the Biodiversity Convention. This was agreed to by ZAWA, who then later hiked up the quotas to previous levels in order to conform with the Hunting Concession Agreement, and then fined Mbeza $43,000 for ‘underachievement’ in the use of the qota in 2006, refusing to entertain mediation in the matter.
5. The present quotas issued to Mbeza are in some cases substantially higher than agreed to in meetings, or lower than requested.



The map provided by the Surveyor-General shows that the boundary of the farm is along the Luangwa. This would confirm that the shooting of hippo and crocodile in the river is illegal, sanctioned as it is by ZAWA.

______________________________________

Senior Chief Luembe and Axon Lungu (Chairman of the Luembe CRB)

In November, 2004, Luembe and the CRB wrote to ZAWA on the matter, receiving no reply:

Luembe Community Resource Board Private Bag 1 Nyimba

The Director-General
ZAWA
Private bag 1
Chilanga

Attention: G.K. Chilukusha (Director: GMAs)
9 November 2004

Dear Sirs,
Re M'nyamadzi Game Ranch. Luembe
Further to our meeting earlier today to discuss the issue of Nyamadzi, and further to our letter of complaint regarding the issue of hunting quotas being issued by ZA W A to the M'nyamadzi Game Ranch - for which no reply has been received.

The M'nyamadzi section of Luembe was given to a foreigner by Senior Chief Luembe - with the agreement of the Nyimba District Council, and the obtaining of an investment license from the Zambia Investment Centre, for a provisionary lease of 14 years. The agreement with the ZIC required the owner to fence the property and develop certain infrastructure. This has not been done and we have discovered that the lease has been illegally extended to 25 years on the original documeI) held by the Commissioner of Lands. And more, without consulting us as required by the Wildlife Act, a hunting quota was issued to the Company to conduct hunting safaris without our involvemeht and without the knowledge of local ZA W A officers. And we understand that certain species have been shot without ZA W A officers being present, some of these species (such as lions) which are very scarce in our open area, and for which we have received no income. As well, we have discovered that workers employed by M'nyamadzi have been poaching animals. The Luembe CRB therefore urgently request the following:
1. That no quota be issued in the future to M'nyamadzi
2. That a copy of the quota and the species shot be given to us
3. That all money from license and concession fees be given to the CRB, as well as compensation for our having to come to Lusaka and to hire lawyers to represent us
4. That M'nyamadzi report on how the meat from the animals was given to the community
5. That the M'nyamadzi do what they have agreed to do under their investment permit, meaning they must fence the property in such a way that it is with our agreement, and within the next six months.
6. That they must then buy the species inside the fence and pay the full price to the Luembe CRB/ZAWA
7. That any other species within the Luembe hunting block and Open Area which they may wish to buy to be agreed to only with our permission and with certain conditions given by us, and that the price be negotiated by us and ZA W A.
8. That ZA W A supports us and our patron and his headmen, in obtaining direct benefits from our wildlife for our community.

Yours sincerely,
Axon Lungu Chairman
Senior Chief Luembe Patron

Chief Kopa...

That Amanita was allocated 10, 000 ha. of land by Senior Chief Kopa and Chief Luchembe is further evidence of the failure of some chiefs to embrace a Landsafe Trust, whereby customary land is leased out under 'usufruct' and not 99 year renewable leasehold which results in the permanent removal of the land from the community.

Amanita tried to obtain land in Chief Nyalugwe's country but was blocked by the community, with encouragement from myself - and I was assured by the then Minister of Lands, Judith Kapijimpanga, that she would not allow it through were it to land on her desk. However as we are trying to usher in investment to customary areas , we encouraged Nyalugwe to rent land under ususfruct to Amanita; something not attractive to Nyualugwe or Amanita - the chief wanting cash in his pocket, and presumably Amanita wanting the security of a western-style land tenure arrangement.

In 2003, I presented the Landsafe programme for investment to Kopa, his CRB and senior advisors. This would have created a Trust in which investors and donor funds would go into a trust fund and be applied to community development - based on a participatory landuse plan. Kopa never did anything. When Kopa sat on the House of Chiefs he must have received a copy of the Landsafe programme which I had distributed to them all through Chief Chiawa. This later resulted in the Chiefs' representative to the stakeholder workshop for the 5th national Development Plan saying that they accepted the concept of "Chiefs'Trusts'.

What was mentioned (but not placed on the blog) in the article, was President Mwanawasa's statement that no more than 250 ha. may be given out in customary areas. Clearly the Commissoner of Land was acting outside of the law; as he has done in awarding some 10,000 ha. of the Mvuvye National Forest on 99 year lease to a businessman. Despite numerous attempts by myself and the community to have the Forestry Department do something about this, we have so far failed, Forestry now even refuse to see us. There are other long standing issues of land corruption which has been reported but nothing is being done about it.

An unfortunate part of the Amanita attempt to buy land from Nyalugwe, was that Nyalugwe then tried to have myself and Ross Michelson (who bought land from Nyalugwe some time ago) deported; succeeding, for a time, with Michelson.

Robin Palmer comments on draft Land Policy...

The Draft Land Policy
Zambia’s draft Land Administration and Management Policy, but referred to throughout as the Draft Land Policy, is dated October 2006.[1] It is a working rather than a formal policy document and carries this health warning: ‘It should not be quoted and interpreted as the policy of the Government of Zambia or any other government ministry or department until it has been finally agreed and adopted.’

Its final sections on implementation, resource mobilisation and monitoring and evaluation cover barely half a page. There is a brief background section and a brief section on vision, rationale, guiding principles and objectives. The bulk of its 52 pages are devoted to ‘situation analysis, challenges and policy measures’. These cover the following issues: (1) international and internal boundaries, (2) vestment and land tenure, (3) customary tenure, (4) leasehold tenure, (5) land administration, including land allocation and land registration, (6) the Land Development Fund, (7) institutional framework, (8) legal framework, (9) surveys, (10) geo-information, (11) land information, (12) land value and property markets, (13) tax and non tax revenue, (14) spatial planning, (15) dispute resolution, (16) private sector participation, (17) transparency and accountability, (18) cross-cutting issues, including decentralisation, gender, HIV/AIDS and other terminal diseases, persons with disabilities, youth, empowerment of citizens, environment and natural resources, tenure insecurity.

The Draft Land Policy contains many admirably frank admissions concerning an overall lack of human and institutional capacity, lack of information and of basic data, lack of transparency and accountability, outdated laws, policy confusion and even ‘fraudulent behaviours’ and ‘deterioration of integrity among institutions dealing with land management and management.’ In response to the listed challenges, including the wonderful ‘lack of compliance by land users’, it offers a series of policy measures, many of which are of a very general nature, are often banal and stand little serious chance of ever being implemented, e.g. ‘establish a well functioning land delivery system’.

Interestingly, concerns are raised about the potential for political interference if land continues to be vested in the President.

There are suggestions for setting maximum holding sizes linked to capability.

There is a need to ‘ensure that non-citizens and foreign companies are not allowed to acquire land through transfer or purchase of customary land’, but government should ‘introduce measures to encourage leasing of land by foreign investors and residents in line with the Citizenship Economic Empowerment Act.’ Yet later land under customary tenure ‘is not easily accessible for investment purposes’ and hence there is need to ‘carry out sensitisation campaigns in order to ensure that some of the idle customary land can be converted to leasehold to promote investment in various communities.’

99 year leases are too long and should be replaced by a scale of 1-99 years ‘based on advice from Land Use Experts.’

There is a call to ‘ensure that land that remains underdeveloped and unutilised within the specified period is repossessed.’ This has been a serious concern in many parts of the country, especially around the Copperbelt.

On gender, the Draft Land Policy notes among the challenges the lack of an enabling environment, discriminatory inheritance rules and rights, lack of disaggregated data based on gender ‘which makes it difficult to plan’, lack of recognition of women’s labour in agriculture, inadequate participation of women in land administration, lack of advocacy and sensitisation to encourage women to own land.

Robin Palmer
Land Rights Adviser
Mokoro Ltd