Review, Reflect, Re-evaluate: Voices from the Land Law Review Process in Malawi
In Malawi, a country where nearly 80% of the population are employed in agriculture, and many more citizens depend on those who work the land, there is considerable pressure on scarce land resources. This situation is exacerbated by high population growth rates, demand for land for construction on the outskirts of growing cities, and the increasing concentration of land in the hands of large landowners. Increasing pressure on the availability of arable land also meets inadequate land governance, which challenges secure access to and use of land for smallholder farmers.
In this context, land is subject to competing claims which can precipitate conflict. This risk is particularly acute on customary land, which is held by users with no formal land title. In such cases, land conflicts may sometimes be resolved unfairly through corruption, particularly when one party belongs to a marginalized group of land users such as women, the elderly or the poor. Although land is essential for the realization of basic human rights, including access to food and adequate housing, there is no codified ‘right to land’ in Malawian or international law. A pioneering project by TMG Research will develop a tool for monitoring land rights in relation to human rights, which is now being rolled out in Malawi with local partners.
The 2016 Land Laws
This project is taking place against the backdrop of changing land law in Malawi. In September 2016, parliament passed ten land related laws reforming land governance. Among the most significant of the new laws, as the International Land Coalition explains, is the Customary Land Act, which seeks to recognize the role of Traditional Authorities in land governance and dispute resolution, while guaranteeing smallholder farmers customary access and use rights to their land. Customary land, organized by matrilineal or patrilineal family systems depending on the region, represents the largest share of land in Malawi. It is mostly administered by traditional authorities, which manage the transfer of land through customary inheritance laws, as well as the execution of semi-judicial functions such as the settling of land disputes.
Designed to help Malawians maximize economic benefits from their land, the 2016 customary land law, which was first piloted in several regions beginning in 2018, states that customary landholders can register their land to secure rights to its use and protection from encroachment or confiscation in the future. The Customary Land Act also proposes the establishment of Land Committees in every village, consisting of the village headman who chairs the committee and six other persons, at least three of them women, elected ‘by and from within the community’ in the words of the legislation. It is the responsibility of these committees to manage customary land in their local area.
Despite the hopes that were invested in the land law reform process, it has proven controversial. The new laws faced resistance while being piloted in selected districts. One thorny issue is whether men will act as mediators of women’s access to land. In response to these controversies in February 2021 the President of Malawi Lazarus Chakwera ordered a review of the land laws, to be conducted by the Ministry of Lands. Changes to some or all of the 2016 land laws are likely.
Paramount Chief Mbelwa IV of Mzimba, a district in the northern part of Malawi, says that he welcomes the land law review process as an opportunity for his community to explain their objections to the Act as originally formulated. “Some societies within Malawi are matrilineal and others like ourselves here in Mzimba, are patrilineal, [but] the Act itself is one sided and is contrary [to] our culture,” he explains. Since the Customary Land Act empowers women to register land in their own names, some members of the Mzimba Heritage Foundation, a local association which promotes traditional culture, fear that the new law would undermine local traditions and therefore opposed its introduction. “According to our power structures [at the local level], myself as the paramount chief sits on top [of the local authority structure], followed by Traditional Authorities. But the Act gives powers to the District Commissioner, who may be someone who comes from a matrilineal society like Mulanje district, to oversee land matters.” Mbelwa also argues that the land tribunals created under the Act will undermine land management by traditional authorities.
Land affairs expert Edward Thole of Landnet, a Malawian NGO who has also been involved in the review process, feels that the resistance to meaningfully implement the Customary Land Act in some parts of the country, are reason enough to have it reviewed. Many sectors of society, he explains, think that the Act is too great a departure from the way land issues have previously been managed both at family and community level. Thole also explains that many people fear the impact of corruption, where local authorities may unilaterally deny individuals the right to register land in their name. Of the land law review process Thole remarks that his organization “has only been engaged in consolidating and submitting the views of our membership, as government is leading the big steps in the process.”
The 2021 land law review: an uncertain timetable
The Ministry of Lands says the review process will ensure that the new version of the law will be responsive to the aspirations of people in the country, as well as sealing loopholes that have been noted in the 2016 Act. According to the Ministry’s publicist Enock Chingoni, all factors being equal, the new bill will be presented before parliament by 1st July. Recently, the country’s minister of lands Kezzie Msukwa, said there is a possibility that the amended laws will be in effect before the end of the year.
Chingoni explained that the Ministry has formed an Internal Land Law Review Committee, comprised of officials from technical departments that fall under the ministry. This committee “has so far conducted stakeholder consultation meetings to solicit their views regarding the laws,” said Chingoni. The consultations have been conducted through physical workshops and virtual meeting involving institutions in the private sector, non-governmental organizations in the land sector, academia and traditional leaders, and also phone-in programs where the general public was given a chance to air their views. Chingoni explained that with the support of a legal consultant, the committee is analyzing and consolidating the views of the stakeholders including the lessons that were drawn from the piloting of the laws in the eight districts of the country.
While sources in Malawi are positive about the fact that progress is seemingly being made, there is no clear indication of how exactly marginalized people were consulted and if so, how their opinions being considered. As Edward Thole argues “despite the whole Customary Land Act being based on human rights, there is a need to be specific in terms of gender representation in a quest to give women more chances of having a say in land matters.” Furthermore, there is a lack of detail and clarity from official sources and local media about the consultation process and the ways that land users, particularly the most marginalized, can make their views known. Given that the issue directly effects a large majority of Malawians, this lack of transparency is concerning. It is to be hoped that in the coming weeks and months the situation will become clearer.
This article is part of Covid-19 Food/Future, an initiative under TMG ThinkTank for Sustainability’s SEWOH Lab project (https://www.tmg-thinktank.com/sewoh-lab). It aims at providing a unique and direct insight into the impacts of the Covid-19 pandemic on national and local food systems. Also follow @CovidFoodFuture, our Video Diaries From Nairobi, and @TMG_think on Twitter. Funding for this initiative is provided by BMZ, the German Federal Ministry for Economic Cooperation and Development.
