Maravi

Chief Mumena's land fears

Chief Mumena's land fears
By The Post
Mon 18 June 2012, 13:25 CAT

THE fears being expressed by chief Mumena of the Kaonde people of Solwezi that land in Zambia will soon be in foreign hands going by the pace and sizes it is being given out are real. It cannot be denied that to develop, we need to give reasonable access to land for those with money to invest. If an investor needs land to build a factory or to start a farm, a plantation that will employ many people and generate revenue for the country, they need to be given that access.

But what we see today is people with influence, with a bit of money being given huge tracts of land that from the very beginning it is clear that they don't intend to fully develop and theirs is simply a speculative motive - to one day sell that land which they got for nothing for a gigantic fortune.

And it is true that good land, valuable land in this country is going to speculators at a very fast rate. Huge tracts of land have been allocated to people who are not using them for any productive purposes. And to hold that land, they are using it for game ranching. This includes both customary land and state land.

Customary land is also being turned into state land so easily and at an alarming rate. The reason for this is simply to ensure high marketability of the land for the speculators. The sale of customary land is one of the most controversial subjects in our land tenure system.

Security of tenure is one of the main problems cited against customary land. It is argued that holders of customary land risk losing their rights to it at the discretion of chiefs and other traditional authorities. This is not true. There can never be a better falsehood against customary society than this.

We say this because rights in customary land are basically of two types: of permanent and total nature and of a temporary and partial nature. Where the rights are of the first type, such as ancestral rights, a person enjoys complete security of tenure to occupy and enjoy the land to the maximum extent possible.

There is no customary rule of law, which deprives him of this land. Similarly, even corporate land, that is clan land, is for the clan as long as the clan continues to exist. Even if an individual decides to leave his place of dwelling, his land rights do not lapse. Practice in various parts of our country can bear testimony to this conclusion.

But if an individual is holding borrowed land, the position is the reverse. A borrower has no security since no specific agreement is concluded. The lender can at any time give notice of his intention to reclaim his land. And the issue of insecurity arising from borrowed land is becoming a crucial challenge.

But in truth, insecurity in customary areas is caused by the state itself. Grants of land to investors in customary areas otherwise known, in the land Act 1995, as conversion of customary to statutory tenure have been the leading cause of insecurity in these areas. During colonial rule, residents of reservations were protected from non-natives. Reserves were out of bounds to non-natives.

On the other hand, if a title deed was going to be issued, say a villager in a trust land wants to sell his land to a non-native, the orders provided that the sale should be witnessed by a magistrate in the area who must also attest to the contract.

Also, the magistrate should aver that the consideration proposed was adequate and that he was satisfied that the seller knew what he was doing. Finally, the district officer must approve the sale as well as the district commissioner.

The district commissioner was also a judicial officer in his own right. All this was preceded by a public inquiry convened to enable people with interests in the land to air their views on the proposed sale. This safeguarded the rights of not only the seller but also the people in the community.

At present, a conversion of customary land to statutory land is virtually a secret process so that people that are likely to be affected by the alienation have no opportunity to question the transaction.

All they see in the end are bulldozers, graders and hordes of people ordering them to leave as the land that belonged to them before has since changed hands. This is the most threatening form of insecurity customary land-holders face.

What is more worrying is that there is no provision in our laws for converting statutory tenure to customary tenure. If land has been converted from customary tenure to statutory tenure, it cannot be taken back to its original tenure again.

Due to constitutional requirements, it is not easy to cancel a title deed once issued. In our case, even if the title deed is cancelled, the land does not revert back to customary tenure.

We can learn something from the Kenyan experience on this score. In early 1960s, the government in Kenya decided to issue countrywide title deeds to everyone holding customary land. This is probably the only case in Africa of nationwide statutory conversion of statutory tenure.

Only a few pieces were left for common use. Also, the pastoralist Masai communities totally rejected the policy. Otherwise, the entire country was held on a statutory tenure. The result is that over 40 years later, millions of people have no land.

Most of the individuals who got the title deeds as family heads later sold them, leaving their kin on the streets. The title deeds have led to massive disposition of land rights instead of securing those rights.

There is need to protect our people from being rendered landless in the next few years. A system which protects the people and which at the same time allows economic development to take place can and must be found. We have examples of where organisations are giving limited title to land to enable those who want to use it to do so with ease.

A good example of this is the Show Society in Lusaka who have given long leases to many developers but still own that land. Why can't our traditional authorities be allowed to do what the Lusaka Show Society has done?

Our draft constitution does not adequately and reasonably address the issue of land tenure and land alienation. Zambia has not really sat down to draw its own land policy. We are simply applying various land laws hastily assembled or picked from other jurisdictions without any relevance to the situation here.

There is need also for admission of past mistakes and that some past certitudes like on titling, modernisation of tenure and on customary systems later proved ill-founded. Our land policy should be examined in its historical context, history matters. The land issue should therefore be perceived as one of the human rights and constitutional concerns of our people.

Given that land policy has in the past often severely discriminated against the poor, specific actions to empower this group would be justified to provide them with equal access to economic opportunities. The right to access land is not guaranteed in the bill of rights. In order to ensure effective rights, this must be there.

Labels: CHIEF MUMENA, CONSTITUTION, FDI, LAND RIGHTS

posted by MrK @ 3:35 PM