Land and Corruption in Africa in 3 Topics | Land Portal | Securing Land Rights Through Open Data
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One global movement sharing one vision: a world in which government, business, civil society and the daily lives of people are free of corruption.

In 1993, a few individuals decided to take a stance against corruption and created Transparency International. Now present in more than 100 countries, the movement works relentlessly to stir the world’s collective conscience and bring about change. Much remains to be done to stop corruption, but much has also been achieved, including:

The Land Policy Initiative is a joint programme of the tripartite consortium consisting of the African Union Commission (AUC), the African Development Bank (AfDB) and United Nations Economic Commission for Africa (ECA). Its purpose is to enable the use of  land to lend impetus to the process of African development. The programme is governed by a Steering Committee that meets periodically, while a joint secretariat implements day to day activities. The secretariat is assisted by an African Taskforce on Land. 

  • Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
  • Analysis of Alternative Dispute Resolution systems in addressing Land Corruption: Case of Kenya and Ghana
  • The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia

Corruption in land governance has gained growing attention in recent years.  National Chapters (NCs) of Transparency International (TI), under the project Land & Corruption in Africa (LCA) work to increase awareness and acknowledgement of land corruption in the national land policy and governance discourse.  TI NCs identified three subjects on land governance that directly affect local communities. The subjects are described are not limited to the countries’ cases, so the contribution collected might contribute to improve the land governance across Africa.

Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights

In Kenya, the practice of forced evictions is a growing national problem that threatens lives and livelihoods especially of the most vulnerable and marginalized members of the society including the urban poor, slum dwellers, persons living with disability, minorities and indigenous groups, women, children and the elderly. Forced evictions have been carried out under the pretext of forest conservation, development projects, and slum upgrading projects. The massive eviction of residents of the Kibera informal settlement in southwest Nairobi, Kenya (one of the poorest communities of Kenya) to pave way for road construction in July 2018 left more than 30,000 people homeless and rendered 2,000 children without schooling.

The situation is similar in Uganda, where the significance of land cannot be gainsaid. The emerging development opportunities by the government characterised by discovery of oil and gas reserves, e - revolution, globalization and economic integration, among others[1] entail projects that require huge amounts of land which the government has and is still acquiring.  This makes land highly attractive to both investors and land speculators. The unprecedented new interest, coupled with the relative ease of persons with financial resources to easily obtain a land title or rights over land, has led to a scramble for land resulting into increased land grabbing, unlawful illegal evictions, fraudulent and or irregularities in land acquisition processes, unfair compensation, leading to loss of livelihoods, family breakdown, loss of inheritance rights, opportunity for corruption of public officials and abuse of community rights. This has greatly eroded the public confidence in land administration.

Analysis of Alternative Dispute Resolution systems in addressing Land Corruption

The Constitution of Kenya 2010 recognises access to justice for all as a fundamental right that all persons are entitled to and obliges the State to not only respect and protect, but also promote its realization in the fullest sense.  Notably, the law identifies access to justice as a core element of achieving social justice in the country. To enhance access to justice, the government enacted the Legal Aid Act 2016  to facilitate the provision of legal aid to the poor. Besides the Act, there also exists the National Action Plan on Legal Aid (2017-2022)  whose main underlying spirit is ‘Towards access to justice for all in Kenya.’ This provides an opportunity to seek recourse to land dispute cases, and more specifically, land corruption related cases. It is instructive to note that the Constitution now recognises and promotes the use of Alternative Dispute Resolution in settling disputes, land being one of them. There is a need to strengthen the capacity of various institutions of governance to deal with the pervasive problem of corruption, to enhance public confidence in their ability to play their part in combating the vice.

In Ghana, access to justice is enshrined in various provisions of the 1992 Constitution. Article 12 demands from all absolute respect to uphold the fundamental human rights and freedoms as enshrined in the supreme law of the land. A major obstacle in accessing justice in Ghana is the lack of an efficient and fully-functional court system, with few poorly resourced courts to provide efficient services to all. Moreover, there are too many protracted land cases in courts where it takes between three to five years minimum and between eight to fifteen years maximum, to successfully resolve land disputes in court. The situation has also been characterized by high risks of corruption, abuse of human rights and justice. Consequently, most Ghanaians prefer using approved and unapproved alternative means of dispute resolution mechanisms rather than the formal court systems.

The Role of Traditional Leaders in Customary Land Administration

In Ghana, corruption in customary land transactions is found to be most likely to occur at the instances when land is allocated by traditional leaders and registered by government institutions. Moreover, private investors have a considerable effect on increasing land prices and the amounts of symbolic drinks and kola nut payments. This has a negative impact on community members by limiting their access to land and title registration services with chiefs, which often results in conflict. Nonetheless, investors are also found to be at a disadvantage in land allocation processes, due to the vagueness and uncertainty of the dual land system.

In Zambia, the overlap of authority in land institutions leaves the system vulnerable to corruption, especially during the conversion process of customary land to statutory leasehold title. Multiple institutions governing this conversion process lack clear guidelines, and authority figures such as chiefs may misuse their discretionary power for personal gain. The lack of standardised processes in customary land administration have overall created a dynamism within which community members have limited access to information on how to secure their land rights. Investors are found to further complicate this situation as the demand for land and a lack of protection of customary rights have resulted in the displacement of customary landholders across the country.

 

Objectives

The specific objectives of these dialogues are to:

  • Collect recommendations in improving the state of affairs, and engaging in a gender responsive approach towards managing forced evictions
  • Examine the legal, institutional reforms and progress made towards making access to justice for all a reality
  • Collect recommendations to better secure customary land rights within a dual land system particularly in the context of the rising pressure on land brought about by the arrival of investors.

Dialogue questions

 

  1. Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
    1. How do you strike a balance between development for common good (public interest) and forced evictions?
    2. How do forced evictions specifically affect women land rights?
    3. What measures/safeguards exist in Kenya and Uganda for protecting citizens against forced evictions? In your opinion, do you think these measures are adequate?
    4. What are your recommendations towards addressing the impact of forced evictions on women in Kenya and Uganda?

 

  1. Analysis of Alternative Dispute Resolution (ADR) systems in addressing Land Corruption: Case of Kenya and Ghana
    1. How effective are Alternative Dispute Resolution (ADR) mechanisms in addressing Land Corruption cases?
    2. What challenges exist in the implementation of alternative dispute resolution (ADR) in resolving land corruption cases in Kenya and Ghana?
    3. How do we guarantee access to justice for vulnerable groups affected by land corruption?
    4. Do you think there is a conflict between the formal and traditional justice systems on land? If so, how can the conflict be addressed?

 

  1. The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia
    1. To what extent the customary land administration is transparent in Ghana and Zambia?
    2. What are the challenges in a context where the land system is governed by both customary and state authorities?
    3. What are the corruption risks in the allocation and registration/conversion of customary land to investors?
    4. Implementing a legal dispute resolution mechanism in the customary land administration would it help to improve the management of customary land?
    5. Could sanctions against chiefs when they deliberately violate the land use could make a difference?

 

Comments

ALPC is very pleased to partner with the Land portal in this important discussion whose theme aligns with the theme of our upcoming Conference on Land Policy In Africa (CLPA-2019) to be held under the theme: Winning the Fight against Corruption in the Land Sector: Sustainable Pathway for Africa’s Transformation. It is my sincere hope that the outcomes of the discussions will contribute to the knowledge and benefit participants of CLPA-2019, scheduled for 25-29 November, in Abidjan, Cote d'Ivoire.

 

The African Land Policy Centre (ALPC), is a joint initiative of the African Union Commission (AUC), the United Nations Economic Commission for Africa (ECA) and the African Development Bank (AfDB) launched in 2017 as a predecessor to the Land Policy Initiative (LPI) secretariat, which was established in 2006.  Some notable achievements of the LPI/ALPC include: galvanising AU Members States and other stakeholders towards commitments and development of key instruments including: the Framework and Guidelines on Land Policy in Africa (F&G), Guiding Principles on Large- scale Land based Investments (GPs), and Guidelines on the Development of Curricula on Land governance in Africa, all endorsed by the African Union Member States. The ALPC is facilitating and coordinating the implementation of the AU Agenda on Land. In this endeavour the ALPC is building on the work of the LPI to implement its strategic plan in key strategic areas to  ensure policymakers and key stakeholders are adequately furnished with important and relevant data and knowledge on land issues. The Centre's strategic plan is also focused on increasing and sustaining political will and capacity development to equip policymakers and stakeholders with requisite skills and expertise while strengthening institutions and systems in the land sector. The centre promotes coherent and effective partnerships with donors, technical partners and actors central to the improvement of land governance and administration in Africa.

 

The 2019 Conference on Land Policy in Africa will focus on addressing corruption In the land sector

 

The Conference on Land Policy in Africa is part of the above mentioned strategic plan with an overarching goal of knowledge dissemination to promote evidence based solutions and partnerships in support of Africa's land sector. The Conference on Land Policy in Africa is convened every two years as a policy dialogue platform for African stakeholders on land governance, in response to needs expressed by African policymakers and stakeholders. The inaugural Conference on Land Policy in Africa took place in 2014, and was followed by the second Conference held in November 2017, which gathered 450 participants representing government, traditional leaders, CSOs, practitioners, parliamentarians, development partners, Academia and research institutions.

 

The forthcoming third edition of the Conference on Land Policy in Africa is scheduled to take place on 25 - 29 November 2019 in Abidjan, Cote d’Ivoire under the theme: “Winning the fight against Corruption in the Land Sector: Sustainable Pathways for Africa’s transformation”. As you might recall, the African Union declared 2018 as African’s Anti-Corruption Year, setting a theme: “Winning the Fight against Corruption: A Sustainable Path to Africa’s Transformation”.  The African Union recognises that corruption is a key factor hampering efforts at promoting governance, socio-economic transformation, peace and security, and the enjoyment of human rights in the Member States.  In many corruption perception indices, Africa is perceived as the most corrupt region in the world.  It is therefore evident that corruption has deleterious effects on the socio-economic development, peace and stability of the African continent.  Tackling corruption in the land sector, through improving good land governance and building robust land governance institutions, will contribute towards the attainment of the “The Africa We Want” as envisioned in Agenda 2063. 

 

The Conference adopts a scientific approach, with a Scientific Committee providing inputs and guidance. It is designed to capture a broad range of land-related local knowledge and know-how, and generate interest from CSOs, women’s organizations, farmers organizations, traditional leaders and the private sector. Selected papers from the Conference will be peer-reviewed and published in a special issue of the Journal of African Land Policy and Geospatial Sciences.

 

CONTACT

African Land Policy Centre  

email: africalandconference@un.org

 

Hi Joan

Could you please share more information on how one can participate in the Land conference, my email is worldwidecarefornature@yahoo.com

 

As a human rights defender who also participated in the 2016 Women to Kilimanjaro Campaign, I feel this conference will help to advocate for Women's land rights and preservation of customary land.

 

I look forward to your response 

Hi Joan,

Thank you for this. Would you kindly share more information on the conference please.

 

On behalf of the Land and Corruption in Africa project of Transparency International, it is my pleasure to welcome you at this online dialogue on Land Corruption in Africa.
Land corruption is a key issue for Transparency International and its national chapters around the world. Whether it’s an opaque deal between private investors and local authorities, citizens having to pay bribes during land administration processes, unaccountable urban planning, or customary laws that deny women their land rights, land corruption hits poor and marginalised men and women hardest.

The first week of this discussion will be dedicated to the analysis of the role of traditional leaders and their relationship to investors and public authorities in land in Ghana and Zambia. What are the recommendations that contribute to establish a more transparent customary land administration system particularly in the context of the rising pressure on land brought about by the arrival of investors.

The second week of this discussion will address the issue of forced evictions as a form of land corruption and its impact on women’s land rights in Kenya and Uganda. What are forced evictions? Are they legal? Sadly, forced evictions happen in the watchful eyes of the government who in most cases justify the evictions in the name of ‘development’ for the general public good.

The third and last week will be dedicated to the analysis of alternative dispute resolution systems in addressing land corruption cases in Kenya and Ghana. The main question has been whether justice in land cases can be made more accessible by encouraging a more collaborative approach between formal and informal justice systems.

Corruption appears to occur most in the aspects of customary land transactions (and registration). This is no more a surprising issue. Customary land registration processes are still time-consuming. They generally remain poorly documented. Transactional activities related to them remain hooded in non-transparent measures. Maybe we could start thinking of using applications and approaches that are corruption proof. This was what we had thought that technology-driven measures (using digitization) would have stopped or at least reduced, but it seems not to have been the case.

 

Blockchain provides a more transparency focused tool for customary land administration. Using Blockchain will involve the creation (management or administration) of distributed land information databases for peer-to-peer transactions, usually shared between the nodes of a network. The implication is that a central system will record land transactions in real-time and transactions are transparent to all in the system. As Blockchain is emerging, it is worthwhile to use it in the land administration sector to enable transparency, and so reduce corruption.

 

In Ghana, for instance, Benben is already introducing Blockchain applications in aspects of real estate and related land sector activities. Blockchain is necessary for the customary land administration sector because it has the advantage of ensuring "transparency" (which is the primary cure or exposure of transactional corruption).

Well, blockchain and bitcoin are all new to us. Like Facebook, it is open to all sorts of sorcery and ma-jonja by the Big Man and his mates. The customary commons is a proven socio-ecological-spiritual system, which blockchain/Bitcoin ain't. And we have a climate disaster on the go.

I totally understand your fears. Hoever, blockchain is not anything like Facebook. It is actually a disruptive technology that is totally hinged on the demand for transparent transactions. It enhances transactional security based on decentralized information dissemination. See a simple description of Blockchain here

Many thanks, Uchendu for sending the info on blockchain.

How can blockchain technology assist in negating corruption in Land Administration?

Transparency -- Once a land record has been published to a blockchain it is available everywhere worldwide and is censorship resistant. Anyone with knowledge of the data can view the record and its contents.  

Immutability -- Once a land tenure record has been published to a blockchain it cannot be removed or changed, preventing

Availability – A land record on the blockchain would be protected from system failure or a single server going down. It becomes fault tolerant.  

Censorship resistance -- Proof-of-work blockchains make changing the ledger progressively more difficult over time. Many chains like FLO Blockchain implement logic that locks in a transaction after specific period of times (100 confirmation for FLO),

Archival trust — More work is added to a land record over time as new blocks are created by miners. This increasing work increases the reliability of the record which is an important component of archival trust. This “work” becomes a proxy for archival trust.

Consensus -- Blockchain allows consensus of customary tenure to be digitally recorded in a way that is persistent and verifiable.

With blockchain you have a mathematical proof of who wrote a record, when it was written, and the record’s contents. Medici Land Governance posts all land records and transactions in their land administartion system on a public blockchain for these very reasons.

The customary land administration set up in Ghana puts the allocation of customary lands in the hands of the local traditional authority, with the consequent land rights recordation and documentation in the hands of the governmental bodies (Biitir & Nara, 2016). However, advances by some customary land secretariats in the maintenance of update land rights registries show the potential of Customary Land Secretariats (CLS) as an alternative/informal land registry with limited capacity to undertake its mandates. The functions of the CLSs include:

  • Consolidate and develop landholding rules and develop public land allocation and transaction procedures to limit double or multiple allocations;
  • Adopt simple land use planning of the customary area to minimise inappropriate land use and protect areas of common interest to the community;
  • Identify and resolve overlapping claims of rights among landholders;
  • Develop more effective dispute resolution procedures, including the adoption of record keeping to help establish precedent;
  • Reach agreement with neighbouring communities on the boundaries of the customary land area;
  • Establish simple registries to record land allocations, transactions and land use planning decisions;
  • Develop forms of certificates or entitlement which precisely reflect the nature of rights over the property awarded and the terms and conditions;
  • Methodically identify, adjudicate, demarcate and register holdings in the customary area without formal survey input as appropriate; and
  • Develop mechanisms which improve the security of those identified as most likely to be vulnerable; women, very poor and landless families in the community and strangers and tenants (Government of Ghana, 2003)

The general Customary Land Administration in Ghana is perceived to be corrupt based on the facts that;

  • There are no points of space  for either horizontal or vertical accountability mechanism
  • No accounts is disclose to family members on the proceeds received in the transactions, allocations and disposal of piece of land.
  • There are no lay down mechanisms to follow with regards to disposal of land
  • Fees and levies are not documented but discretionary decided base on your negotiations.
  • Generally undocumented land contract
  • Undetermined Customary boundaries that increases double sales and land conflicts etc.

It was based on these assumptions that the Ghana Land Administration Project decided to pilots Customary Land Secretariat (CLS) as designated office mandated to support the Land Owning groups to be more transparent and accountable in documenting land transactions within the Tradition Councils. 

Over 58 CLSs exists across the country, with dedicated office with some complement of staff that support the functioning of the secretariat. Some of the CLSs has become financially viable by making the land transactions so transparent by documenting and displaying fees, levies and charges on every transactions. Some of the CLSs have an audited accounts that is read to the hearing of family members every 40 days of their meeting.

Some of the CLSs have established stronger linkages with the District Assemblies and Office of Administrator of stools lands in regularizing building and other developmental plans, base maps and revenue collection on rents and property rates.

Question 1: To what extent the customary land administration is transparent in Ghana and Zambia?

Customary Land Administration can be divided into Stool Lands and Family Lands. The lack of transparency can be traced to the absence of candour in respect of the size of land that had been granted and how much is realised from the sale/disposition of the land. The other critical issue is multiple sales by landowners. Lack of transparency could also be traced to the deliberate instigation of conflict by principal members of the same family or between allodial owners, stools and family heads in order to deprive a purchaser for value from enjoying his acquired interest in the parcel in dispute.

Two schools of thought exist on the nature of transparency of customary land administration in Zambia. From the traditional authority, they claim that through their God given right to be custodian of land they have a consultative system made up of village headmen,(indunas) which ensure that all land administration issues are transparent. From the legal and regulatory framework there is a requirement through Circular No. 1 of 1985 any land transaction which requires conversion into Stateland must have a signed consent by the Chief. However, such consent may not necessarily have been vetted by the village community and could have been obtained in corruptly.

Emmanue Tembo makes a very interesting and valid point when he points to blurred lines on conversion of cutomary land to state land where consent by a Chief is required. In extension, I can argue that whilst inclusion of traditional authorities in land conversion is crucial and that it requires transparency in so far as local voices are concerned, the wider socio-political and economic processes that bear on Chiefs must be accounted for.  

Like most African countries Zambia has a dual land tenure system. Customary tenure deriving from indigenous customary laws and practices and statutory tenure deriving from the country’s British colonial legacy. The following are the legal instruments which have explicit or implicit references to customary land or its administration.

·        Constitution

·        Lands Act

·        Chiefs Act

·        Registration and Development of Villages Act

·        Urban and Regional Planning Act

·        Local Courts Act

·        Subordinate Courts Act

·        High Court Act

There is currently no law or written regulations specific to customary land administration. The limited guidance available relates to the conversion of customary land to state land. However, to the extent that customary land tenure and its administration are provided for or implied in other public legal instruments, it could be argued that there is a very limited level of legal transparency with regard to this form of land administration.

In practice, access to customary land in Zambia is facilitated by chiefs through village headpersons and Indunas (chiefs’ advisors) and follows a more simple process compared to the complex and bureaucratic procedures governing access to state land. However, these customary processes vary from chiefdom to chiefdom and are not codified and could be argued, are less transparent as there is no explicit guidance on the roles and responsibilities of traditional leaders in managing customary land.

Although chiefs hold and administer land on behalf of their subjects, the decision making process is not very transparent especially when land is subject to conversion from customary to state land. There are reported instances when chiefs have been accused of allocating huge tracts of land to investors without consulting the local communities.

Emmanuel Mutale places opprobrium on “complex and bureaucratic procedures governing access to state land.” In reality I wonder whether this could raise the need to promote transparency in procedures shaping access to state land which by implication could in turn help governance of customary land.

This is somewhat transparent depending on the level. At the level of chiefdoms – between local communities, headmen and chiefs – one can find some level of transparency due the nature of landholding. Land is often held in clans and tribes and is shaped by clear lines on availability, access and utilisation which are built overtime.

At a higher level such as when dealing with investors – domestic or foreign – there are some noticeable gaps. Reports exist in different parts of Zambia where community subjects have complained their traditional leaders gave away their land without consultations and consent.

  • Some of these relate to the hybrid of authorities and lack of clarity on boundaries. In Zambia, traditional leaders do not have the mandate to parcel out tracks of land over 250 ha – beyond which the authority of the Minister steps in.
  • Given that government systems get involved at this level, reports have emerged on how state officials get intricately involved in land allocation thereby creating bureaucratic and legal confusion.

Overall, a surge in domestic and foreign land investments heighten overlaps of authority in land institutions, raising risks of corruption such as in identification and conversion process of customary land to statutory leasehold title. Recent research1 shows this has been compounded by poor coordination and collaboration between and among state institutions which is further shaped by unclear guidelines and authority in customary land administration.

1Manda, S., Dougill, A., and Tallontire, A. (2019). Large-scale Land Acquisitions and Institutions: Patterns, Influence and Barriers in Zambia. Geographical Journal, Vol. 2019: Pages 1 – 15: DOI:10.1111/geoj.12291.

Zambia has a bifurcated land tenure system inherited from the colonial administration: state land (6% - managed by the Commissioner of Lands on behalf of the President) and customary land (94% - managed by traditional authorities). Constitutionally, all land in Zambia is vested in the Republican President who holds it in perpetuity on behalf of all the Zambian people. However, customary land is constitutionally recognized as a ‘non-state’ alternative to ensure equity and access to land by the rural Zambians. Though official figures indicate that customary land is 94% of the national territory, a more recent study estimates it to be about 51-54%.[1] This figure highlights the level of customary land that is being converted in the country.  

Managed by traditional authorities, customary land is not subject to formal regulations but rather to socio-cultural values of a particular ethnic group where the land is situated – therefore, plurality of customary land administration mechanisms. Using the term ‘transparent’ to loosely refer to elements of accountability, traditional authorities are not accountable to anyone in their chiefdoms. Constitutionally, to convert customary land for development project in national interest, the government is legally obliged to consult with the Chiefs. Chiefs therefore can allocated land whoever they want, and have been said to be enriching themselves from land sales. There is little opportunity for prosecuting a Senior Chief, for example because formal regulations do not apply to customary land, just like customary regulations do not apply to state land. The co-existence of state and customary land is a ‘marriage of convenience,’ and this has been at the core of conflicts that have stalled the formal process to advance the adoption of National Land Policy.[2]

Though there are two land tenurial systems in Zambia, there are 7 acceptable pathways to obtain land for investments, and traditional authorities, the Commissioner of Lands and the Local Councils are the decision points in the land acquisition process where corruption is likely to happen the most.[3] In a country with poor land governance, ‘government self-acceptance’ of corruption[4] and inherently constrained financial, institutional and human resources, corruption risks are high, and though implementation of legal dispute mechanisms would improve the management of customary land, in practice, this is still a mirage in the current (in)formal structure of customary vs state land. In theory, sanctions against chiefs, just like anyone else can bring about positive behaviour change. Perhaps, the question to pose at least in the Zambian context is, ‘can a Senior Chief be sanctioned for violating land use?’ In the current land policy dispensation, it is less likely that a powerful traditional authority be sanctioned.   

 

[1] Sitko, N. J., & Chamberlin, J. (2016). Land Use Policy The geography of Zambia’s customary land : Assessing the prospects for smallholder development. Land Use Policy, 55, 49–60. https://doi.org/10.1016/j.landusepol.2016.03.026

[2] See a story here: House of Chiefs Reject Draft National Land Policy and Walk out of Meeting, Lusaka Times, March 1, 2018 https://www.lusakatimes.com/2018/03/01/house-chiefs-reject-draft-national-land-policy-walk-meeting/    

[3] Chilombo, A. (2019). Understanding the Socio-economic and Environmental Impacts of Large Scale Land Acquisitions in Zambia: a Case of Nansanga Farm Block. PhD Thesis, The University of Edinburgh

[4] General Republic of Zambia (2017). The Zambia Seventh National Development Plan (p29)

Very well said Andrew. In your words: ".......traditional authorities, the Commissioner of Lands and the Local Councils are the decision points in the land acquisition process where corruption is likely to happen the most." Is there a tacit assumption here that sanctions be considered for all actors across all decision points as opposed to a somewhat exclusive focus on chiefs? Will this enable Zambia draw out potential culprits of corrumption in customary land administration? 

Focusing my contribution on Zambia, and rather than answering some questions myself, I would like to make some suggestions in order to obtain (more) clarity on the issues raised.

The information on (the transparency of) customary land administration in Zambia is ambiguous, at least if one consults the, to my knowledge, main and most comprehensive source: the application of the World Bank’s Land Governance Assessment Framework (LGAF) to the situation in the country[1]. On the one hand, some highly critical remarks are made regarding the patriarchal nature of customary land acquisition, the unclear definition of customary land rights and chiefs that do not consult their communities, and “ (…) the unwritten nature of customary law or practices used to administer customary tenure, leaves room for manipulation and corruption.” These statements are very much at odds with the “A” score (i.e. the highest) on indicator 6.1.2.a: “Non-documentary evidence is effectively used to help establish customary rights.” In other words, it is not that easy to answer the question to what extent the customary land administration is transparent in Zambia. It would be pertinent to invite the LGAF author to participate in the debate and shed some light on this question.

Regarding the challenges of the ‘cohabitation’ of customary and statutory tenure, it is probable, in Zambia and anywhere else, that there will be problems when two competing administration systems lay a claim on the same portion of land. These problems have been discussed at length in the Land Portal’s debate on Customary Land Recognition: Zambian Approach to Documentation and Administration, where mention was made of the possibility of “passing laws that elevate existing customary land rights up into nations' formal legal frameworks, thereby making customary land rights equal to documented land claims”, a step suggested by Rachael Knight in her influential study on the statutory recognition of customary land rights. I consider the idea very valuable, precisely because of the aforementioned overlapping claims and the corruption risks that they entail, particularly in a country where corruption in general is at a high level according to the Corruption Perception Index (35/100), and probably pervades all areas of governance. I would like to know what Ms Knight has to say about the specific case of Zambia and am, therefore, suggesting to ask her to participate in the debate.

And finally, let’s try to avoid turning the debate into an exchange of opinions about the ultimate stakeholders but without giving them a voice. Farmers are by no means the only social category that has a stake in land, but they are one of the most important ones, in any part of Africa. The Zambia National Farmers’ Union (ZNFU) has on some occasions intervened in the land debate in their country, and it would be of much added value to take into account their views (and/or or those of the Zambia Land Alliance, of which ZNFU is a member) on the relationship between customary land rights, corruption and tenure security for their constituency. Nothing about them without them!

In conclusion, rather than pretending to be able to write a full-fledged essay on customary land rights and corruption in Zambia, I prefer to try to advance the debate by making suggestions for other sources of information: Mulolwa, Knight, ZNFU.

 

[1] Augustine Mulolwa (2016): Land Governance Assessment, Zambia Country Report

A warm greeting to you all, it is a delight for me to return to the Land portal and add my voice to how customary land is managed in my country particularly Luapula province. Every time I engage in advocacy work on land I ask my self if we as Zambian know who land belongs to. This is because our constitution states that all natural resources (land inclusive) is vested in the president who holds it on behalf of the Zambian people. On the other hand traditional leaders who are well recognized by law as custodians of customary land perceive this land to be theirs without providing for holding on behalf of the people who have been born and raised in that chiefdom.

Whilst the state draws it's powers of land allienation from the law,  traditional leaders also have powers to grant or deny convention of customary land to state land.

Going back to my question, I feel Zambia is struggling with corruption issues on Land because both the state and traditional leaders do not acknowledge the fact that the Land they are managing belongs to the Zambian people who they are supposed to serve. Today Zambia has no land policy because the fight was over the views of the state versus traditional leaders without consideration of the Zambian people's view. 

Moving forward women in Zambia will only enjoy their right to land once the duty bearers understand who the real power holders on land are. Unless the power is transferred from the current holders to the people customary land in Zambia is under serious threat of diminishing. 

The answer to this question is well known. There is no transparency in the way customary land is administered. As far as traditional leaders are concerned they answer to no one!  This system of power holding and not being accountable to people being served is what has seen customary land fall in the hands of foreign investors and the elite Zambians. 

Based on all the studies and research on land, it's my sincere hope that at the end of the debate we all focus on implementing the recommendations because that's where our efforts are needed the most. 

The management of land in Zambia is divided into two sectors, customary and state administration systems, though the government has generally a say on almost all land administration and management (except Western Province were the land management system is entirely under the sole discretion of the Litunga).

Land under customary systems is managed and overseen by the traditional leaders, styled as Chiefs, with their under-lords or administrative assistants called Headpersons looking on smaller portions of the Chief’s entire chiefdom. Needless to say, Chiefs in their day to day administration are assisted by a Council of Elders called by different names from one culture to the other, it is common for them to be referred to as Nduna in the Eastern region and as Chilolo in the Northern parts of the country.

Chiefs derive their authority to exercise power over land principally from the Constitution Chapter One of the Laws of Zambia, which in most jurisdictions, is the supreme law. Part XII of the Zambian Constitution in Article 165 sets out the institution of Chieftaincy and establishes traditional institutions guaranteeing them exercise of culture, customs and traditions, additionally, subsequent to the provisions of Article 166, the Chieftaincy has power to hold property in trust for its subjects. In this context, land is property, as Part XX, Article defines Property as “as a vested or contingent right to, or interest in, or arising from …land, permanent fixtures on, or improvements to, land”.

Additionally, the Lands Act Chapter 185 of the Laws of Zambia, which is the principal Act on the administration of land in Zambia, in its preamble identifies existence of customary tenure, and provides for its statutory recognition, it further in Section fortifies that.  Other pieces of legislation like the Chief Act Chapter 287 equally recognizes and fortifies the authority of chiefs in managing customary land. Furthermore, the Draft Land Policy published in by the GRZ in December 2017 also ascribes to this role by traditional leaders.

From the foregoing, it can be noted that the administration of customary land is rightfully placed in the arm bit of traditional leaders.

Regarding Transparency of Customary Land Administration in Zambia, I would love to approach transparency in two fronts; firstly, in having clear procedures to access land, and secondly in having no illegalities concerned.

  1. Having clear procedures:
  • The alienation of customary land in Zambia in the main, is transparent as it is devoid of bureaucracy and hierarchical systems, as is the case with state land management.
  • This transparency can be attached to none or limited involvement of chiefs themselves in granting occupancy rights to customary land but by delegation of these powers to their headpersons who over see the day to day alienation and administration of land.
  • Further, everybody knows the steps that are to be taken if one wants to occupy land, namely, approach the headperson where you want occupancy rights and get registered in the village register after paying the necessary homage.
  • In certain chiefdoms, like the Ndake Chiefdom of Nyimba District in Eastern Province, the Chieftaincy had as far back as 2011, published a Step-by-Step Guide in the procedure of getting land in that chiefdom, which basically are the steps outlined above.
  • The fact that a person gets land from the first contact (headman) cuts down the procedure and hierarchy, creating a quick and efficient land administration system, the Chief then endorses the consent given by the headperson in granting rights of occupancy to that person
  1. Lack of Illegality in Traditional Land Administration Systems
  • In a customary system, homage is paid at every level of the traditional tier, these are privileges due to every lord or sovereign world over as a courtesy or token of recognising that lordship
  • In Zambian traditional systems, such tokens could be chickens or other articles of food such as cooking oil.  It is such gifts that protagonists argue as illegal and underhand and corrupt methods of land administration in the customary system.
  • This author vehemently argues that such tokens, cannot amount to corruption, as it is a long-established tradition that when visiting a sovereign, you carry tokens to them.  Additionally that each person knows the standard and value of this token, though unwritten but respected universally across that culture, culminates into its intrinsic acceptability by that culture, and cannot be questioned by another person outside that culture with different moral and cultural background and typified as a corrupt practice, hence rendering a whole customary system as lacking transparency. However this argument does not intend to rule out any possibilities of bad elements in the customary system, sporadic cases abound where traditional leaders have abused this trust.

While the Barotseland Agreement was very specific on the matter of land:

 

'In particular, the Litunga of Barotseland and his Council shall continue to have the powers hitherto enjoyed by them in respect of land matters under customary law and practice; the courts at present known as the Barotse Native Courts shall have original jurisdiction (to the exclusion of any other court in the Republic of Zambia) in respect of matters concerning rights or interest in land in Barotseland. Provided that nothing in this paragraph shall be construed as limiting the jurisdiction and powers of the High Court of the Republic of Zambia about writs or orders of the kind at present known as prerogative of writs or orders'. [i]

 

The Western Province (Land and Miscellaneous Provisions) Act No 47 of 1970, removed the Litunga’s powers over land, wildlife and natural resources and vested them in the President, all land in the Western Province being ‘Hereby vested in the President as a Reserve within the meaning of and under the Zambia (State Lands and Reserve) Orders 1928 to 1964’. 

 

 


[i] “THE BAROTSELAND AGREEMENT 1964.” Barotseland.info. 1 May 1964. Web. 26 Mar. 2017. http://www.barotseland.info/Agreement1964.html

 

All land is vested in the president of Zambia - so the amended constitution of 2016 confirms, and the Land Commission ‘administers, manages and alienates all land on behalf of the president’.

I calculate that Zambia is demarcated as follows: customary area 70%; national park 8.6%; national and local forest 9%; and state land 12.4%. In an article, I had stated that customary land made up 94% of the country – a mistake.[1]  If the estimate in 2016 by Sitko et al that customary land takes up 54%, then a massive landgrab by the state has occurred.[2] Customary area is divided into open area and game management area (GMA), the latter taking up 20% of the country, more than national parks and national forests put together. The GMAs are of course actually under the control of the government, who lease them out for photo and hunting safaris, and customary area as a whole for mining and industrial agriculture schemes – state land by any other name.

But all this will change. The advancing global climate catastrophe, the destruction of wildlife and ecosystems, will see to that. The IPCC report of 8 October 2018, Global Warming of 1.5C, declared that the next 12 years will decide mankind’s future, placing it in an Anthropocene framework. There is no time to lose.

The world's capitalist system is broken, the future lies with the survival strategies of villagers in the chiefdoms, with Cuba, with ecosocialism rather than Big Corporate America and Europe. Each chiefdom now requires a citizens' assembly to manage climate change and deal with land and natural resource issues. As per Allan Savory’s recommendation in his Good Governance in Africa, where possible devolve and reduce government: the first-past-the-post party electoral system to be abolished, replaced with a unicameral chamber of deputies where customary area deputies are directly elected.

In Africa chiefs will have to remain as the guardians of the land and the 'living ancestors', a spiritual duty, leaving the assemblies to administer the chiefdoms.[3] And, as we know, the two-party system is broken, requiring that Zambia revert to an ecological state. This is inevitable if man is to survive.

So, any discussion on land administration, land system challenges, corruption, legal dispute mechanisms, and sanctions against chiefs, is a purely temporary bandage.

But a significant early move took place at Victoria Falls last month where the African Union and the U.N. Environmental Programme (UNEP) held a meeting attended by 40 customary communities and NGOs from 12 African countries (including members of the Zambia CBNRM Forum).[4] At the conclusion of the meeting they issued the following statement:

Goals

Noting increasing rural poverty across the continent, loss of wildlife and habitat, lack of inclusion of communities in decision making and lack of rights, our goal is to reset the agenda for community-based natural resources management to:

- Reduce poverty at household level;

- Turn wildlife into a rural economic engine;

- Achieve self-determination and security of rights and tenure; and

- Develop strong community institutions to govern wildlife sustainably.

Solutions and way forward

With consideration of the above arguments, we the communities of Africa propose the following as the way forward to achieve a New Deal:

- Recognize community rights over the ownership, management and use of resources - Strengthen community governance and institutions

- Build and enhance local capacity of communities to govern and manage natural resources

- Recapitalize the communities and their natural resources including across boundaries

- Ensure that community voices are heard in shaping policy and decision making

– from the local to the global level

- Strengthen evidence-based adaptive management, incorporating indigenous knowledge

- Promote investment partnerships in a community-owned wildlife economy

- Ensure that a full and fair share of benefits from the wildlife economy flow directly to the communities

- Change the development model from doing things for communities to financing well-governed communities to do things for themselves

 

  1. Transparency of land administration

 

There is no transparency. Unfortunately the British handed over a territory in 1964 to an executive American-style presidency. The formation of chiefdom assemblies is essential. If not, villagers holding usufruct will continue to be kicked off their land; as happened with the Luembe chiefdom land I had converted into trust land for the benefit of 1200 villagers, and then sold by the chief to a trader, the villagers kicked off, their sacred groves left untended. Which is why my friend Chief Chibesakunda reached back into the past and called for the re-introduction of the Native Authority Act of 1930 and the Native Authorities Ordinance of 1936 to protect chiefdoms from the depredations of the state, landgrabbers and the donors by returning the full ownership rights of traditional leaders and their people to the land.

 

 

 

 


[1] I.P.A. Manning, The Landsafe Socioecological Development Model for the Customary Commons of Zambia: Evolution and Formalization, 52 Nat. Resources J. 195 (2012). 

https://digitalrepository.unm.edu/nrj/vol52/iss1/7

[2] Sitko, N. J., & Chamberlin, J. (2016). Land Use Policy The geography of Zambia’s customary land: Assessing the prospects for smallholder development. Land Use Policy55, 49–60.https://doi.org/10.1016/j.landusepol.2016.03.026

[3] Kaoma, Kapya John. Ubuntu, Jesus, and Earth: Integrating African Religion and Christianity in Ecological Ethics. PhD dissertation, Boston U, 2010.

[4] Africa’s Wildlife Economy Summit Hosted by the African Union and United Nations Environment Programme Victoria Falls, Zimbabwe - June 25, 2019: Voices of the Communities: A New Deal for rural communities and wildlife and natural resources

 

Question 2: What are the challenges in a context where the land system is governed by both customary and state authorities?

The first challenge is that customary tenure governance is not codified and depends to a large extent on the goodwill of the traditional authorities. It has generally worked well but with the advent of Large Scale Land Based investments, the temptation to “offer” land to the investor at the promise of job creation is huge. This sometimes can lead to displacements of the same people who are supposedly to be given jobs. On Stateland, the Lands Act provides for the vestment of land in the President and the Commissioner of Lands acts on behalf of the president. Currently, the Commissioner of Lands allocative power can be abused as there is no proper allocation system.

Emmanuel Tembo makes yer another important submission that Chiefs might be driven by rational objectives of job creation and/or rural transformation. Some of this equate to public narratives of development being equated to foreign investments. A lack of rural development and poor state support means Chiefs can take matters in their own hands. But again this is where the problem really is.

Official but outdated statistics suggest that 6% of Zambia’s land is state land and the remaining 94% is customary land.  The existence of a dual land tenure system presents several challenges for land administration. These challenges relate to the following:

  • An incomplete legal cadastre - Current land registration law is limited to state land while customary land is not subject to the land registration system.
  • An incomplete fiscal cadastre - While state land is subject to land rents and taxes, there are rents or taxes levied on customary land.
  • A differentiated system - With statutory tenure having well defined boundaries and superior rights than customary tenure. Fixed boundary system, registration of title, collateralization are all exclusive to statutory tenure. While customary tenure has general boundaries, rights limited to use and occupation with no title, cannot be used as collateral.
  • Lack of clarity and overlapping rights and mandates - which can sometimes be difficult to disentangle in instances where state developmental interests are occurring on customary land e.g. Game Reserves, Forests Reserves, Mining interests, establishment of new districts or extensions to existing districts which have to occur in customary land.
  • One way conversion - Currently land can only convert from customary to state land. There are no provisions to give land back to customary authorities even in instance in which the land has not been used for the purpose for which it was converted.

I calculate that Zambia is demarcated as follows: customary area 70%; national park 8.6%; national and local forest 9%; and state land 12.4%. In an article, I had stated that customary land made up 94% of the country – a mistake.[1]  If the estimate in 2016 by Sitko et al that customary land takes up 54%, then a massive landgrab by the state has occurred.[2] Customary area is divided into open area and game management area (GMA), the latter taking up 20% of the country, more than national parks and national forests put together. The GMAs are of course actually under the control of the government, who lease them out for photo and hunting safaris, and customary area as a whole for mining and industrial agriculture schemes – state land by any other name.

As we discuss land issues, it is very important to be reminded of the biblical/African view of land management. Are you the E. Mutale who published the article in which was presented a Biblical View of Land Policy, views in close accord with those of indigenous Africa? Contained in it are eight land management principles (ECCLESIA):[1]

 

1. Equitable, Effective and Efficient - Fairness and justice should be characteristics of the land allocation system. Land management must be capable of producing desired results at a minimum cost to the public and the environment.

2. Community Origins and interest - A land management system must reflect the value systems and interests of the people it serves and not be an alien imposition.

3. Cheapness and Completeness - Original grants of land should be cheap enough to be afforded by all. Failure to which means-tested selective subsidies should be considered to enable the poorest of the poor in society to access land. 

4. Leasehold - There is a loose coincidence of thought on the ownership of land between the biblical view and the African view. They both acknowledge that absolute ownership of the land does not vest in the individual. To the one, it vests in God, to the other, in the community. The leasehold principle complements the equity principle by providing potential opportunities for redistribution.

5. Exclusive use-rights - The principle of private use-rights is widely practised in Zambia, more so in urban areas. As for rural areas, families and individuals tend to have exclusive use-rights to their fields.

6. Security of Tenure - A clear definition of boundaries, state guarantees, a system of registration, and an independent and accessible legal system are essential for securing use-rights

7. The Intrinsic value of land - While accepting the classical economic concept of the use and exchange value of the land, land management must be extended to embrace the intrinsic value of land. Land should not be valued only in relation to its use and exchange value, but also for its own sake.

8. Accessibility to all - Land should be made available to all. Mechanisms need to be worked out on who qualifies, where they qualify, when they qualify and how they should be enabled to access the land. Ensure that people do not lose their only land through being forcefully dispossessed or distress sales, or if they do, they are enabled to redeem their land.

 

I consider this a very important article; No. 6 says it all regarding security of tenure – for this is what it truly is all about, that and the protection of Mother Earth.

On 12 May 2017, Hilal Ever, the UN Special Rapporteur On the Right to Food weighed in with the following: [ii]

 

I strongly encourage the Government to adopt a gender-sensitive, inclusive National Land Policy based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.

 

 

 


[i] Mutale, E. ‘A Biblical View of Land Policy’ South African Journal of Surveying and Mapping’, Vol. 23, Part 6, Dec. 1996, pp325-332

[ii] Preliminary Observations of the Special Rapporteur on the right to food, Hilal Ever, on her mission to the Zambia capital, Lusaka. 3-12 May 2017.” UN Human Rights, 12 May 2017. Web. 18 May 2017. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?

 

I have just read the early 2018 discussion and see your comment on the codified biblical approach to land issues. So, have you placed! You have made a very important contribution on a crucial issue, something much gone out of focus in the Global North.

Emmanuel Mutale notes a very important feature of conversion of customary land to state land as ‘one way traffic.’ In his own words:

“Currently land can only convert from customary to state land.”

I wonder whether provisions to covert statutory land back to customary arrangement upon discovery of corruption can greatly deter any corruption.

It may not deter much corruption, but it will certainly bolster customary areas. The state is the main alienater through the process of taking land from the customary commons and declaring them national parks and national forests of one kind or another. Many of the forests have been invaded by people who don't necessarily fall under a particular chiefdom. This is also happening in some national parks. As for the game management areas, they are just rent baskets for government, the chiefdoms receiving little benefit.  It is overdue for many of these areas to be taken over by the original chiefs/villager assemblies. And where chiefs have alienated land without the permission of the people, they should also be returned.

The biggest challenge of having a dual land administration system is that:

  • Both state and traditional leaders take Land as a resource that generates revenue; however for the state, guidelines on land access and payment of land rates makes it easier for land owners to comply other than in customary land where the royalties required for one to access land are not fixed and may vary from person to person and when the resources are collected, there is no transparency or accountability on how they are being managed or how they are contributing to chiefdom development. The common practice is that everything received by the chief belongs to the chief.
  • Despite both systems of administration being recognized in the Zambian constitution and land laws, state land is considered more secure because title deeds stand as proof of ownership in the courts of law and elsewhere whereas the customary land certificate though valid is not as secure and recognized as the title deeds. (This makes one wonder why two systems are recognized when politically one supersedes the other while traditionally the other system reigns supreme)
  • Traditional leaders hold mystical powers which threatens citizens to challenge them even in cases where they are oppressing the people hence despite customary land being termed as free, people prefer to buy it off from the chiefs and convert it to state land for security reasons. As a result, customary land is reducing at an alarming rate.
  • To date Zambia has no land policy because the dual land administration system has made it difficult for the two interest parties to agree on the content of the policy in terms of power sharing, who hold more authority over the land and who should have the final say. As it is today, all activities taking place in customary land require consent of the chief/chieftainess.

The corruption of the chiefs - due to accounting issues - did undermine both Indirect Rule and Zambia; but this is not sufficient to give way to imperialism. We just need to make some changes. It is of the utmost importance that customary area is fully protected. It is at the heart of African spirituality and ecological protection. The state is just a plunder mechanism which has brought on climate destruction. Do away with chiefdoms at our peril. Yes, sorcery is a massive problem, but there are mechanisms in place to deal with it, though weakened greatly by the colonial process. We need to create customary assemblies soonest. The chiefs can then wrestle with sorcery as the guardians of the land and the 'living ancestors'. Customary land is the only secure thing in Zambia - the rest is but a market.

Nsama makes an interesting observation: “As a result, customary land is reducing at an alarming rate.” 

In stretching this point, I can argue that now more than ever land grabbing present the biggest challenge facing Zambia. Chiefs will need protection from such influences.

An inquiry is urgently required to establish what percentage of land in Zambia is customary area. The Sitko et al paper of 2016 needs to be thoroughly investigated, and if verified, explanations obtained of where the land went. The House of Chiefs should have been invited to contribute to this discussion, as well as the Auditor-General's office.

  • There are fewer such incidences in Zambia, as mostly, wherever a government institution exists, it automatically becomes state land, and changes tenure. However instances exist where this is not clear as documentation may be missing or lacking to verify it.  In such instances the foremost challenge is encroachment.
  • Encroachment leads to squatter communities which in turn leads to unplanned settlements and attendant urban planning challenges
  • However, in terms of land Administration, there always is a pull between the traditional leaders and the state. Current situation between Chieftainess Nkhomesya Mukamambo II of the Soli people over the Chikupi Community in Kafue District and the Mikango Barracks land issue in Lusaka District.
  • This challenge arises from lack of a clearly outlined tenure conversion system and verifiable and well-known and defined boundaries.
  • There seems to be no, or less readily available literature on this, but these experiences are shared from the author’s own over eight years of experiences handling and resolving these matters, though documented, but not in an academic fashion
  • Other cases involve passing of by-laws by local municipal or Local government that proscribe geographical limitations for expansion of township boundaries, without taking into consideration the customary communities that will be swallowed within that circumference.

Chief Nkomeshya (chieftainess is redundant, surely: Presidentess?) is a remarkable and resolute leader as she stands up for her people. The push is between the neoliberal state, and the ecological community. They don't kamba the same language - nor should they.

One major challenge for governing both customary and state authorities in the same country context relates to unclear mandates and how to deal with overlaps. In Zambia, traditional leaders exercise custodial authority over land, but state authority supersedes which creates confusion between the two spheres of influence. Zambia suffers from lack of standardisation in customary tenure systems

However, dualism where the land system is governed by both customary and state authorities has its own advantages. The existence of a large rural and agricultural based economy renders land administration to customary tenure system in most parts of the country as opposed to statutory leasehold. This system speaks to majority Zambians, their culture and historical experiences. Investors on the other hand benefit from statutory land tenure seen as guaranteeing their investments.

AS Hilal Ever, the UN Special Rapporteur On the Right to Food said:

 

I strongly encourage the Government to adopt a gender-sensitive, inclusive National Land Policy based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.

  • The unnecessary red tape and bureaucracy in the service delivery also breeds corruption.
  • The duality / legal pluralism make registration more costly and time consuming
  • However, these standards fall short of specifying the regulations for mapping customary rights and interests and the administration of customary lands outside the land registries. The customary lands are governed by the customs and traditions of the area by the Traditional authorities, usually through their CLSs ].

In some regions in Ghana such as parts of the Brong Ahafo, Eastern, Northern and Upper Region and in some cases in the Greater Accra Region, the lands are vested in the State. This is where administrative corruption or lack of transparency comes in. Under what moral or legal grounds would the state actors like Divestiture Implementation Committee(DIC) & Land Commission(LC) divest several thousands of vested lands to private individuals/companies when the state has not paid promptly and adequate compensation to the owners.

Why would the Military in conjunction with the State Land agencies, knowingly encroach on parts of stool/family lands adjourning acquired lands and use them as buffer zones to the detriment of the individual owners?

On the part of customary authorities, even though Article 36(8) of the 1992 Constitution clearly states under the Economic Objectives of the Directive Principle of State Policy that the State shall recognise that ownership and possession of land carry a social obligation to serve the larger community and that managers of public, stool, skin and family lands are fiduciaries, the state actors in most cases connive with some of the heads of families and chiefs to deprive the people of their lands and livelihood without accounting for them.

Question 3: What are the corruption risks in the allocation and registration/conversion of customary land to investors?

The major risk of allocation is that it is dependent on the Chief’s consent, whose consent is assumed to have arisen after consultation with his/her subjects. This assumption is not necessarily correct as it sometimes happens that a traditional authority can be bribed to sign off the consent. The President’s power through the Commissioner can also be abused if it is decided that the investment is in public interest i.e. the President can allocate any piece of land anywhere if it is deemed to be in public interest. This can be subject to abuse.

The corruption risks in the allocation of customary land arise from the intrinsic nature of customary land administration system and the recent drive for large scale land investments:

  • Trusteeship principle in which the land is held by the chief with very limited safeguards to ensure wider community consultation before land is allocated.
  • Absence of customary land regulations leaves the allocations of land to the open interpretation of customary law and practice by traditional authorities
  • With the opening up of the land market after the 1995 Land Act and the increased pressure for land-based investments, there is a huge market for land

  • The major corruption risks are that, whilst the people who are affected by investments have legal rights to the land on which they dwell, the traditional leader once given an attractive package signs off the land which the investor is interested in and because investors are aware of this weakness, they present chiefs/chieftainess with gifts that make it difficult for them to think about the consequences of signing off the land.
  • Local people who want to hold on to their lands also begin presenting traditional leaders with gifts to obtain consent for conversion. This disadvantages the vulnerable people who have nothing to offer the chief as they become subject to displacement.
  • Currently, because of the attempt to place all land management to the state through the land policy which failed to be validated because chiefs rebelled and walked out on the process, traditional leaders have agreed to stop consenting documentation for land conversion, this position has increased the corruption rate because obtaining consent now requires a hefty package, which most foreign investors and government officials are able to afford.

  • Large-Scale Land Based Investment in Zambia has always been problematic. As it usually involves of customary land, as State land is limited by size. This almost always leads to conversion as no investor feels secure developing customary land, this results in communities being displaced. In a 2017 report, Human Rights Watch documents (Documentary released on October 25th, 2017 found at: https://www.hrw.org/news/2017/10/25/zambia-commercial-farms-displace-rural-communities) that  rural residents are  displaced by large commercial farms in Serenje district, by some commercial farmers acquiring thousands of hectares of land and forcibly evicting rural communities that have farmed the land for generations.
  •  The report cites government failure in protecting the rights of these communities, but rather only focused on promoting large-scale land-based investments in trying to diversify the economy.
  • A 2013 report entitled LARGE-SCALE LAND ACQUISITIONS: EXPLORING THE MARGINAL LANDS NARRATIVE IN THE CHITEMENE SYSTEM OF ZAMBIA (Laura German, Davison Gumbo, George Schoneveld 2013) intimates that forests and mixed-use woodlands are often targeted by government for agricultural expansion to leverage benefits from land-based investments. It goes further to allege that the identification of such areas is more often driven by perceptions than evidence, with these perceptions grounded in optimistic views about land availability and discriminatory views of customary land uses.
  • As pertains the conversion process (Laura et al 2013) reports that in contrast to other African countries, the Zambian government actually acquires the land from customary authorities irrespective of any interest expressed by prospective investors, resulting in a permanent shift from customary to state land even in the absence of investment.
  • HRW cites this as a challenge. In the report cited above, Government officials say all farm block land was long ago converted from customary to state control. Some advocates and traditional authorities say the processes were so faulty that the conversions should be considered void.
  • But legally, government and investors have specific procedures to follow over these investments. They need to consult affected communities, provide appropriate compensation, adhere to resettlement standards, assess environmental impacts, and comply with relevant laws. Traditional leaders must also consult affected communities before agreeing to land transfers. Government officials should ensure that investment projects comply with the law. (Lands (Customary Tenure) (Conversion) Regulations.)
  • In another vein, the law through a Statutory Instrument, regulates the amount of land a traditional leader can give to an investor without consultation of government – 250 Hectares, but in some instances traditional leaders have exceeded this limit, causing uproar about abuse of power and possible linkages to corruption.

  • The buyer pays undetermined fees to the allocation committee without receipts and payments will not be disclosed to the chiefs.
  • At any point in the registration the interested party will be made to pay money before the document is processed
  • Undetermined and undocumented procedures
  • Other land uses are not be informed to grant their consent, for the change of use.
  • Just a few family members  will be privileged to enjoy the benefits derived from such large scale land acquisitions
  • Unnecessary Delays in attaining registration

Chiefs and family heads are custodians of the lands over which they superintend and hold them in trust for the larger community but as fiduciaries, in most cases they are expected to seek the consent, concurrence and approval of the other principal members before disposing of such large tracts of land to so called investors, most of whom are nothing but land speculators.  These ‘vampires’ pay peanuts to the customary custodians and secure the land for future sale at prices, at times 1000 times how much they paid for the land.  The danger is the lack of literacy in so far as the economic value of land is concerned.  Normally it is staff of the land agencies who serve as the linch-pins between the investors and the customary land owners.

Corruption in land sector thrives and persists for 2 main reasons- one,  a broken opaque system riddled with inefficiency that breeds frustrations on the users; and two,  the drivers of the system who irregularly benefit from the broken system, corruption and who would do anything to frustration efforts at fixing the system.  solutions then must address these 2 areas. while technology could fix the system, the people power is needed to tackle the human angle.  under the customary land regime, the communities whose lives and livelihoods depend on the land always lose in the face of corruption. oftentimes, they do not understand the systems under and through which the land transactions are done between their traditional leaders and the players who gain an undue hold on the land. 

Building the people's power to understand their rights and hold their leaders to account is thus critical.

 

Zambia must transform itself, its customary commoners banding together under an Ubuntu Christian guardians culture to fight such as dam construction, mining, landgrabs, carbon offsets, fish and game commercial poaching, seed colonialism, soil destruction and poisoning, and state capture of the chiefdoms natural resources. And, it must fight global warming, and the biodiversity extinction and ecosystems ecocide by vigorously asserting its eco-religious traditions and commoner tenure rights of old. In short, a transformative revolution is required. The IPCC report of 8 October 2018, Global Warming of 1.5C, declared that the next 12 years will decide mankind’s future, placing it in an Anthropocene framework. There is no time to lose. I have prepared a draft Manifesto for Zambia in which I write:

1. Customary area secured and its renewable resources by providing all customary land tenure – whether de jure or de facto - with full legal clan ownership on an equal footing with that of state land, with all rights and responsibilities over renewable natural resources. The reason for this is that indigenous customary people safeguard the carbon bank and its wildlife, and they use no energy. The UN’s UNFCCC to immediately establish a program for the full legal recognition of customary rights to land presently held under de jure or de facto land tenure, to be fully launched at the first global stocktake - presently set for 2023, and in broad terms to follow the policy document that the consortium, Land Rights Now, has put forward. The full implementation of the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016 is essential. Under section 27: Subject to this Act, a traditional community has the following rights over its genetic resources: the exclusive right to regulate access to its genetic resources; an inalienable right to use its genetic resources; the exclusive right to share the benefits arising from the utilization of its  genetic resources; and the right to assign and conclude access agreements. Unlike Target 16 of the Aichi Goals that wishes to ensure that ‘Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their utilization is in force and operational, consistent with national legislation’,[47] the ‘Protection Act’ is law and clear on the rights of clans and tribes in occupation of customary area. But it must cancel out much of what is in the Wildlife Act 2015, i.e., a landgrab of the rights of customary people to their land and renewable resources.

2. Customary commoners to use the public trust principle and the rights of customary tenure as predating the colonial two-party parliamentary system to secure judicial protection for the future commoners and the proletariat existing in the degraded towns.

3. The UNFCCC’s REDD+ and the state’s landgrab of customary area for agriculture, and other commons enclosure schemes to be abolished, and an investigation made of land alienations so that commoners recover corruptly alienated land and resource rights.

4. The use of land chemicals banned, and the implementation of an agroecological strategy where the 100 drought resistant traditional seeds of history (sorghum, millet, bulrush millet, cassava and the non-hybrid maize) are grown, delivering villagers full protection from the GMO seed/herbicide predators, and where the state is forced to reform the hybrid maize/nitrogen fertilizer and herbicide tyranny. In addition, very strict controls on the import of chemicals to be implemented along with a ban on maize exports.

5. Chiefs to serve purely as guardians of the clan and tribal culture, and as the supernatural custodian of the land and rain. Sadly the government does not take into consideration the supernatural ‘rights’ of chiefs exercising their powers under traditional law. Chiefs therefore will stand aside - as does the British Crown -to allow a Guardians’ Assembly to actually administer the chiefdom.

6. First Nation People such as Bushmen and Pygmy (Twa) to be accorded full land usufruct and resource user rights in their own chiefdom.

7. Each chiefdom and municipality to establish a citizen’s assembly.

Zambia is actually very far ahead of the global north - apart from the indigenous peoples of North America - in that they live an ecosocial life; apart, that is, from the towns.

Question 4: Implementing a legal dispute resolution mechanism in the customary land administration would it help to improve the management of customary land?

Of course, it would. Which is why Chiefdom/Guardian assemblies are essential. The present system does not work: it fails to protect customary area.

Traditional authorities generally have a system for dispute resolution which have stood the test of time. However, it is also possible if there is change in leadership at the traditional level that one leader can overturn what the other previous leader would have decided in terms of allocation. This leads to disputes and evictions sometimes. To make legal dispute resolution mechanisms on customary land will require the land policy to be accepted first and for the system to be less expensive.

In addition to allocation and administration customary land, there already exists in Zambia,  traditional courts presided over by chiefs and their advisors set up to handle conflicts and disputes based on prevailing customs and practices. The Chiefs' Act recognizes traditional rulers, and therefore by extension, traditional courts, which are an integral part of traditional governance. In addition, statutory recognition of traditional courts can be inferred from the following Section 50 of the Local Court Act:

….nothing in this subsection shall be deemed to prohibit any African customary arbitration or settlement in any matter with the consent of the parties thereto if such arbitration or settlement is conducted in the manner recognised by the appropriate African customary law.

The existence of these traditional dispute resolution institutions however, does not seem to have had a major impact on reducing land disputes.

Between 2014-2017, the USAID-funded, Tenure and Global Climate Change Programme in Zambia’s Eastern Province, documented in the region of 20,000 customary lands in 5 chiefdoms. Anecdotal evidence from the chiefs suggests that they had benefited greatly from a reduction in land disputes. While a major objective of this exercise was to map and document household claims to individual or family land, a necessary component was land dispute resolution. It is the coupling of the two – mapping and documentation alongside dispute resolution mechanisms - which might have combined in nailing down the certitude of land claims and thus reducing land disputes.

Yes it would, because currently especially in the mining communities (Luapula Province) Chiefs out of frustration of losing out on mineral resources have taken it upon themselves to charge miners, including local people who are working illegally in the sand and stone quarries. In cases where mines fall in customary land, traditional leaders are creating their own barriers and asking people to send tribute to their palaces failure to which the land will be repossessed. Without a legal dispute resolution mechanism in place, people are now living in fear of both government and traditional authorities. In some cases this has increased lawlessness as rebellious villagers resort to taking law into their own hands. Once implemented the process would help to promote transparency and accountability in the management of customary land and also help to uphold human rights in line with both the international and national laws.

  • Contrary to popular belief, customary dispute resolution systems are the most efficient and fast track judicial systems in Zambia, this is due to accessibility; cost efficiency and lack of procedural respectabilities which is the norm in the formal legal system
  • In a study done by Petauke District Land Alliance( 2018), this author established that Traditional leaders have historically used customary law to resolve land disputes, marital matters, succession and inheritance disputes and many more. To this day, the institution of traditional leadership still employs customs to resolve disputes. As a result, customary law continues to play an integral role in the resolution of disputes in communities. Traditional courts are established in accordance with the various traditional governance systems in the country.
  • People their own volition elect to go to traditional courts for justice, because customary law is premised on the principle and spirit of voluntary affiliation, and that its application is accessible to those who choose to live in accordance with its evolving values and abide by its practices and customs. Further, many who subscribe to customs and practices embedded in customary law voluntarily elect to have their disputes resolved in terms of their customs and practices in traditional courts.
  • A Dispute Resolution Mechanism in a Customary system can work well due to the following reasons among others:
    •  Accessibility – these courts are accessible anywhere as a litigant can walk to the nearest traditional leader and lodge a complaint
    •  Flexibility – the court system is so flexible that no stringent arduous process of filing is required for the matter to be properly before the court
    •  Quick disposal of matters – matters are resolved amicably and in a timely and efficient manner as no time is wasted. Mostly a matter is resolved within a week of its lodging
    •  Principle of reconciliation – in resolving disputes, there is promotion of the principle of reconciliation, because living in harmony is for the communal good and high priority is placed on the maintenance of human relations
    • Traditional governance system – these courts are part of the governance and administration system.

  • The ADR concept introduced in the Customary Land Administration is helping particularly women and marginalized to seek redress should hitherto could not have contested their cases in the law courts.
  • The legal dispute resolution mechanism do no actually deter land owning groups to be corrupt because the delays associated with the legal systems.
  • Many land cases in the law courts has been over 50 years without judgement and rendered such lands and property unproductive.

Yes it would help.  This had been the dispute resolution mechanism that had managed land tenure in Ghana for centuries.  The recent directive by the Asantehene Otumfuo Osei Tutu II to all Asante chiefs to withdraw all land cases pending before the courts for customary settlement, under the pain of destoolment has worked magic in the Asante Kingdom.

Thanks to all the contributors to this discussion. This is a valuable learning space with opportunities to learn from the experience of Ghana, Zambia and Kenya. One of the challenges we face in South Africa relates to the collapse of land administration particularly in former 'reserves' and 'bantustans' established as part of colonial conquest and consolidated under apartheid. One of the ironies of South African geographies of inequality is that many of these overcrowded and impoverished former bantustans have been found to have rich mineral deposits. Uncertainties over land tenure and how land rights vest in these areas have created spaces for mining houses to enter into corrupt and exclusive arrangements with traditional leaders which have led to further dispossession and marginalisation of local residents.  For more information on the South Africa see the collation of news on lands rights and mining on knowledgebase.land the website and information service run by Phuhlisani NPC on all aspects of the land question in South Africa.

It would be great if contributors to this discussion could reflect on the role of traditional leaders, the allocation of mining rights and the distribution of benefits and the extent to which local land rights holders are enabled to exercise free, prior and informed consent in the countries which are the focus of this discussion.

 

Mining must be severely limited, strictly controlled, and managed, with citizens - customary villagers at the front of the queue - benefitting directly from the proceeds along the lines of the Alaska Permanent Fund. For many years the mines have not paid the requisite taxes, nor dealt and compensated for the horrendous pollution. Here again, let us see citizens' assemblies in action.

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