Partners: 

The Land Portal is a Foundation registered in the Netherlands in 2014.

The vision of the Portal is to improve land governance to benefit those with the most insecure land rights and the greatest vulnerability to landlessness through information and knowledge sharing.

USAID’s Tenure and Global Climate Change Program and Land Portal Foundation will co-facilitate facilitate a dialogue on experiences of documenting household and community-level customary rights in Zambia. The dialogue will bring together the perspectives of government, traditional leaders, practitioners, civil society, and academics to consider how customary land documentation can contribute to national development goals and increased service delivery in rural and peri-urban areas. It will consider challenges associated with large-scale documentation and administration processes and the relevance of customary documentation processes to Zambia’s National Land Titling Program and potential future Customary Land Administration Bill.

Why Customary Land Rights: With perhaps over 50% of the world’s land surface de facto managed by indigenous peoples and local communities, there is a need to recognize and subsequently document these rights to land and associated natural resources. Many of these systems have been governed through unwritten, though locally legitimate, customary norms that rely on traditional leaders. With the recognition of customary rights there is also a need to ensure that state and customary institutions are able to communicate, share information, and work toward complementary objectives. 

Customary land is often portrayed as rural, forested, and lightly inhabited with limited state engagement, while state land is seen as high value urban and peri-urban planned areas. Yet customary institutions are evolving and are not divorced from market forces, urbanization, or migration pressures. Youth migrate into cities only to return to the safety net of customary land when times are difficult. Households may migrate to lightly populated areas with improved soil fertility or more consistent rains. National and international investors seek land for agriculture, as well as commercial, residential, and industrial developments. In some cases, customary systems are disintegrating, where, for example, large areas of land are being converted to leasehold title and local populations are being displaced. These pressures are particularly strong at the interfaces where customary and statutory land management meet on the peri-urban fringe. In other cases, customary systems are evolving and leaders are protecting the rights of local populations through customary land documentation processes or by promoting fair negotiation between communities and investors. In this context, tools are needed to share information freely and promote improved management of land and natural resources. This is particularly important given that in many contexts, while land may sit with the customary institutions, resources, such as timber, wildlife, and minerals, are unambiguously under the control of the state.

Why Zambia: Zambia presents an excellent case study for understanding the opportunities and challenges associated with promoting customary rights recognition. Zambia’s 288 customary chiefs have legally recognized authority over ~70-94% of the country’s 752,000 km2, while government leaseholds on state land are restricted to ~6% of the country at independence, surrounding urban centers and lines of rail, with a further 10-20% of the country that may have been converted to leasehold since 1995. The authority of customary leaders over land is recognized but these leaders have limited tools for land management. Spatial records for both state and customary land allocations are limited, and only a handful of chiefs issue documentation of their land allocations or of customary decisions made in traditional courts. Zambia’s chiefs are relatively non-political, and while some chiefs have been accused of allocating land to investors through non-transparent means, others are seen as advocates for protecting the rights of rural stakeholders. In recent years, the government has launched efforts to document state land through a National Land Titling Program, while at the same time discussing options for promoting the documentation of customary land allocations through a National Land Policy and a subsequent Customary Land Administration Bill. While still under development, these initiatives provide an opportunity to harmonize and build bridges between Zambia’s customary and state land administration systems, which to date are entirely separate from one another. There are a number of pilots related to land documentation being carried out on both state and customary land in Zambia by the government, the private sector, civil society and donors to test processes and technologies for systematic land documentation across customary and state land. These experiences are creating an evidence base from which to develop a national system.    

An equally important, though less discussed, element of customary land management in Zambia is the devolution of rights to natural resources found on customary land, particularly wildlife and forests. At present, though communities may have customary rights to land, they do not have rights to commercialize wildlife or timber, limiting their opportunities for diversified rural livelihoods built on natural resources. Yet there are emerging mechanisms such as community forestry, community game ranching, and community titles that may strengthen local institutions and their legal authority to manage resources. 

This discussion will contribute to Zambia’s customary rights recognition processes by increasing internal understanding of the conducive policy and social framework for rights documentation, and by increasing global awareness of Zambia’s opportunities for leadership in this area.

 

Objectives

The specific objectives of this dialogue are to:

 

  • Demonstrate the role of documentation to increase transparency between state and customary authorities to improve land use decision-making;
  • Highlight how documenting customary rights can be achieved cost effectively through engagement at the interface of the policy, participatory processes, and technology;
  • Increase awareness of the benefits of documenting customary rights for responsible investment, peri-urban development and rural planning, and resource management; and,
  • Raise awareness within the Zambian community of practitioners and government of their opportunity to be global leaders in customary rights documentation, and to raise awareness globally of Zambia’s unique tenure arrangements.                     

 

Dialogue questions

 

  1. Customary, community, and communal land in Zambia: What are we talking about?
    1. What is the role of customary/traditional authorities in a modern state?
    2. What tools are needed to manage rural and peri-urban land?
    3. Customary land and state forest, wildlife, and minerals: What is the value of documenting land rights when resource rights rest with the state?

 

  1. Documenting customary rights at scale:
    1. Legal Framework: Is it legal?
    2. What institutions are prepared to document: government, CSOs, private sector?
    3. What are the most important pieces from a process perspective?
    4. How to from a technology perspective?
    5. How can we reduce costs?
    6. Potential unintended consequences: Impacts on women, youth, and vulnerable populations?

 

  1. Customary land administration: How to avoid creating a snapshot in time?
    1. How to increase transparency and sharing of data between customary and state authorities using online platforms?
    2. What low-cost tools can be used to register changes?
    3. How can services be bundled for chiefs and communities?
    4. How to build a use case:
      1. What is the interest ranging from land use planning and service delivery to taxes and restrictions?
      2. What is the interest of private sector in customary land documentation?
      3. How does documentation change the actions of smallholder farmers, evidence from impact evaluation?

 

  1. Opportunities for scaling:
    1. Who can pay for mass documentation?
    2. How to support customary authorities while respecting their differing needs?

Comments

Dear Colleagues, 

It is with pleasure that we open a three week discussion on customary land rights documentation and recognition dialogue on the land portal. This dialogue has organized contributions from stakeholders to share some of Zambia's dynamic experiences, and hopes to bring together global experiences on customary rights recognition processes. 

We hope to roughly divide this discussion into a series of questions starting with: 

  • 15-18 January: Context of Customary Land in Zambia - What are the challenges? 
  • 18-24 January: Documenting Customary Rights - How to do it and what can we improve on? 
  • 25-31 January: Impacts of Customary Land Documentation
  • 1-6 February: Customary Land Administration Sustainability and Scaling

Contributions are welcome at any point on any relevant piece! 

 

Sincerely, 

Matt

Zambia's chiefs are crucial partners in all that happens on customary land. They administer traditional land in line with their customs and traditions, beyond that, they are arbiters who resolve a range of issues affecting their subjects as relates to land. But with the incoming need of documenting land, they now stand at the centre stage of being the key player in the documentation process.

 

In our experience at Akros a global health information service provider, we have found rural chiefs to be the greatest driver of change in their communities. Information or instruction coming from a government employee or organizational partner simply does not carry anything near the sway of that same information coming from a chief. We have also found that when chiefs are presented with easy-to-understand graphs and charts, they are very motivated to reinforce the needed behaviours in their community. This is typically done through what we have come to call “chief visualizer dashboards” that are presented on mobile tablets and are automatically updated with the most recent data being reported every month. If a chief is seeing that land disputes in a particular area are on the rise, he can allocate resources accordingly and dispatch support to that area. Similarly, the chief can see a monthly summary of changes made in the system or check attendance at VLC meetings. 

We've started translating some of this experience in health to rural land rights issues, for example in this article.

 

 

Clarity is required from USAID on their land titling efforts in Eastern Province and elsewhere. Is this code for the alienation of customary area to leasehold, or simply the issue of land certificates as Chief Ndake is doing?

Dear Ian,

Thank you for this important question. 

The work that USAID supports through the Tenure and Global Climate Change project in Zambia does not promote alienation of customary land to leasehold, and as a result the chiefs and partners (Chipata District Land Alliance and Petauke District Land Alliance) who USAID supports are very careful never to use terms like "land title" in relation to the customary documents that they produce. The certificates themselves have a list of conditions on one side that describe in both English and local language that the certificates do not reflect consent for conversion of customary land to leasehold, as well as other conditions. 

 

Since 2014, USAID has been supporting the District Land Alliances to engage with chiefs, their advisors, village headpersons and each household in a rigorous process that allows people to map their customary land holdings, and document both landholders and persons of interest associated with the parcels. The certificates fall entirely within customary land administration norms. 

 

As you note, Chief Ndake (with the support of Zambia Land Alliance and the Nyimba District Land Alliance) has been issuing customary land certificates for a number of years. Additional research is demonstrating that dozens of chiefs (out of 288) around the country already issue some form of document or paper alongside land allocations, though these come in many different forms. The CDLA and PDLA work adds the dimension of a map to each certificate that falls within a village and chiefdom map of parcels. As chiefs' complete the process, some are interested in using these maps for planning purposes with district government.  

The government’s role on customary land is based on the Lands Act of 1995 together with the procedures as laid out in the Land Circular of 1985. Specifically, for any grant of land to be effected on customary land the local authority (the district council and the chief) must recommend to the Commissioner of Lands such grant. The Commissioner of Lands will make sure that the recommendation is accompanied by the Chief’s written consent and minutes of the Full Council.  In respect of planning customary land as well as maintaining Forest land in customary areas the government relies on Urban and Regional Planning (URP) Act of 2015 and the Forest Act of 2015 respectively. The URP Act provides for the preparation of Integrated Development Plans in all planning areas which include areas under the jurisdiction of traditional authorities. Section 25 of the Act provides for local authorities to enter into planning agreements with chiefs in customary areas. The Forest Act provides for sustainable utilization of forest resources in both customary and state land.

 

There is an important, almost philosophical, or in any case terminological point here that has not yet been addressed above. As far as I understand (and definitions on Wikipedia of customary and statutory law seem to confirm this), the fundamental difference between both is that statutory law is written down and customary law is not. Hence, and by defintion, customary land rights cannot be documented (= written down), because then they would cease to be customary and become statutory. But this conclusion is not drawn above, at least not yet. Or is my reasoning erroneous?

A number of important issues/questions have been raised in this discussion already. But I thought the topic for this week is "Context of Customary Land in Zambia: What are the challenges?". As such I will restrict myself to this topic.

Some of the challenges include:

- unorganised land use planning 

- illegal 'trading' of customary land, motivated by the fear of the landless future at household/family level but without capacity to utilise newly acquired land

- power concentration in individuals rather than having strong institutions. Power concentration is at all levels (National, chiefdom, village, household)

- lack of say by the people, leading to land displacement

- massive public ('unschooled' and learned alike) ignorance about land administration - with many people leaving or using land without know its legal status. Others simply do not know the value of their land.

- weak enforcement of land laws, sometimes exacerbated by resource starvation of land institutions 

- unclear national vision on land - demonstrated by lack of a comprehensive land policy 50 years after independence 

- land degradation

- limited research 

- 'etc'

 

These challenges require concerted efforts and most of all political will to be addressed.

There is insufficient information on the status of land ownerships records, leases, and general cadastral information in Zambia, (size of state land and customary land). There is need for a comprehensive land audit.

There is also a challenge of government perception of customary land with a general perception of customary land as idle, readily available and not in support of the land market (economic theory of land). However, the majority of the land, about 90% of Zambia’s land is controlled by the Chiefs where there is often overlapping customary and statutory tenure. To date, there has not been a clear way to build trust/confidence between the government and the Chiefs and hence tension exists which hinders the two parties from working together. Indeed, in many cases, Chiefs perceive the government as an agent of land grabbing.

We believe that the process of land titling needs to be revisited; it should not look at making customary land into statutory land, as conversion could lead to some communities losing their land. The government titling programme should look at integrating customary tenure in its customary-ness without converting it into state land, ‘customary land administration’ without being extinguished and replaced with different forms of tenure.

We recognize that some chiefs and traditional leaders (Indunas) have abused their positions as custodians of customary land and sold land in unscrupulous ways. There are cases of double allocation of land, disinheritance of widows on land etc. These cases need to be examined and dealt with through training and governance support.  

Zambia also needs to consider the challenges of rapid urbanization. Lusaka for instance is expanding rapidly and getting taken over by real estate companies and other investments.

Protection of women land rights remains a challenge. As much as we have a few chiefs who support women land rights, others sell land indiscriminately without regard for their subjects. Women are at a high risk of getting disinherited of their land or being displacement from arable to barren land by chiefs.

The increasing attention on customary land tenure towards customary land administration is related to an increasing need for strengthening of customary institutions. Statutory tenure and the customary tenure often co-exist especially at the local levels. Worthy to mention is that customary tenure have survived from colonial period to now and have continued to play a vital role in customary land administration. Customary land tenure has an important role to play as effective powers on the ground.

Historically customary and statutory land tenures have been intertwined, and part of the legitimacy of customary land tenure derives from state recognition.

Recent efforts of including traditional chiefs in land administration at local government meetings have shifted the focus to existing social and political structures at the local level. With little regard to customary land structures, such actions are likely to fail. Further, this inclusion is not without problems. The inclusion of customary institutions into government structures is a way of dealing with the reality of weak state performance in customary land administration.  Strengthening of customary land tenure can mitigate the harsh reality of states weak performance.

Customary land tenure in Zambia exists in complex relations to their local constituencies and the state. This complicates their integration into modern Zambia. Besides, customary land tenure institutions are close to their people and can help with the provision of basic services and the improvement of the social and economic conditions at their local level.

Customary role has always been betwixt and between, that is, being accountable to their customary constituencies and simultaneously to government. The complexities of this dual system have not easily been resolved in the constitution.

 

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