<< Go back to the main page of the Online Discussion
2nd Week
5 - 9 July
In the 2nd week, the discussion took place in the plenary space
1st Week
28 June - 4 July
This is the discussion thread on Tanzania, Zambia, Zimbabwe & Malawi, as part of the Online Discussion "Customary law and institutions - Protecting or undermining community land rights in Southern Africa?"
How to participate
- Login or register to Land Portal
- Visit this page again (you can open this page in a separate tab/window in your browser and reload it once you are logged in)
- Click on 'Reply' or 'Add a comment' at the bottom of the page
Related material
To better understand the land governance context in these countries, check the country portfolios for:
Comments
Welcome to the country focused online discussion space where we aim to critically examine the changing role of customary law and institutions in the management and administration of land under customary tenure in each of the four countries.
We start the discussion by trying to understand a little about the history of the different countries. All four countries were administered by the British for periods prior to independence. Tanzania obtained independence in 1963 and Zambia and Malawi in 1964. Zimbabwe, which had a large settler population fought a protracted guerrilla war to obtain independence in 1980.
What were the main approaches taken by the respective colonial and settler governments in Tanzania, Zambia, Malawi and Zimbabwe to customary law and governance systems?
In what ways have post-colonial governments in the four countries changed these inherited systems?
What has been the thinking behind these changes?
At least in Zambia, the customary structure continues to be relatively effective in raising the voice of some communities and the situations in rural areas. It acts as a locally acccessible structure for accessing land, and accessing justice. The diversity of chief creates a lot of different opportunities and lessons from those who have deep local experience to those who really had never lived in the village previously. With respect to land rights, the chiefdom structure seems to be rather effective, when managed openly and transparently (which is not all that common unfortunately). The local legitimacy in the customary structure is hugely important, particularly as civil servants and government becomes a bit more politicized. The main gaps (in my mind) are the link and respect between customary and state structures, creating additional capacities within customary institutions so that they are not reliant on a single chief, and building more transparency and documentation within the customary structure. All of these are quite possible, and indeed are happening to some extent within Zambia where some Chiefs are bringing stronger administration systems to the table. Personally, I think the customary structure brings a counter-balance to national politics.
Thanks Matt for these important insights. You speak of the need to build more transparency and documentation into the customary structure. Does this suggest the need for some sort of codification of customary law? See the emerging conversation sparked by Sean Johnson's overview aricle on the Lesotho Eswatini and Botswana cluster discussion. What is the antidote to elite capture of customary institutions from a customary law perspective?
When women visit these structures they do so to affirm their rights. They are both victims as well as right holders. However, these spaces also interrogate these same rights in a way that women continue to justify why they deserve their land rights preserved. It is possible that these structure can afford women the space to exercise their rights through an outcome that protects the rights, but this same journey can also be liberating, exhausting and even humilating... and women do give up! Yes, these structures remain the most accessible and for most women also spaces that are meant to understand the cultural context, so decision making should ideally be able to incorporate and be alive to all the nuances. So how can we protect women, so they do not have to consistently be the one compromising and negotiating for less? Doesn't the idea that they have "settled" make the whole process a bit unfair and unjust?
Cecil Rhodes’s BSA Company acquired much of the territory now known as Zambia under a royal charter in 1889. The BSA Company first gained land rights for what was known as North-West Rhodesia - except for Barotseland, where its rights were restricted to mining – though this restriction was later eased. It could, therefore, bring in European settlers and insist that customary villagers move that were living on land suitable for settlement. Systems of forest conservation and land management were introduced that affected traditional conservation systems, particularly the fishing and hunting guilds, made considerably worse when the BSA Company introduced the alien concepts of leasehold and freehold land. To compensate for this, the Northern Rhodesia Order in Council of 1911 declared that the Bantu (the Bushmen never had land rights) would be assured sufficient land and water sources for their needs. Before this, the Hut Tax was introduced and used to force villagers into labour in the mines. The killing of big game was prohibited, though, in 1905, the BSA Company reluctantly allowed duiker to be hunted. In 1907, at the end of the growing season, shifting chitemene agriculture and mitanda (seasonal dwellings built in the rains amidst the crops) were banned in some areas, as were the use of game pits.[i] In 1908, three chiefs complained to the administrator of the BSA Company concerning the abolition of chitemene. Three years later, the ban was lifted.
In 1923 the Passfield Memorandum described the situation in more unambivalent terms, ‘that the interests of the African natives must be paramount, and that if, and when, those interests and the interests of the immigrant races conflict, the former should prevail.’
In 1924, the Protectorate of Northern Rhodesia was declared. This led to the establishment of Native Reserves in 1928-1929 under Indirect Rule, introduced in 1929 - although the chiefs had not been consulted beforehand.[ii]
The adoption in the territory of Indirect Rule – following on from its implementation in Nigeria and Tanganyika, established the customary commons under native authorities.[iii] In 1929, the passing of the Native Authority Ordinance (repealed by the NA Ordinance No. 9 of 1936) and Native Courts Ordinance – followed by the establishment of native treasuries in 1936, saw Indirect Rule imposed everywhere except Barotseland. To form native authorities, this required that the Provincial Administration create additional ‘tribes’ (such as the Soli and the Chikunda) and appoint new chiefs by statutory appointment. Taking into account the jurisdiction of these authorities, the country was split into provinces and then into districts and staffed by District Commissioners (DCs), District Officers (DOs) and District Messengers (kapasus), headed by a Provincial Commissioner (PC) within the Provincial Administration (PA). Income for the Native Authority came from government grants, licences and other fees. District officials - following a set of development plans - held meetings with the chiefs, the local officers responsible for agriculture and health, and prominent local people. Therefore, the operations of the Native Authority were highly collaborative, with the officials visiting all the villages a few times a year to assess development and advise on a host of issues.
Chiefs in the BSA Company period from 1889 to 1924 had become used to direct rule and appreciated the British's impartiality. But as Melland and Young observed, ‘They did not regain the right to rule in accordance with custom, but were forced to rule on lines laid down by their European overlords, to administer to justice and to punish on those lines.’
Before attaining self-government in 1964, the territory comprised the following: Crown land (5.6 %) held by Europeans; native reserve (18.9 %); Barotseland (16 %); and native trust land (59.5 %). According to an Order in Council, the Governor of Northern Rhodesia administered native trust land for the sole benefit of Africans. Europeans could only have access to these areas if they were part of a township development or public utility.
[1] Melland, Frank. “Chitemene Banned Mpika 1907.” Mpika District Notebook Volume I, 1907. p.92. Web. 17 April 2017.
[ii] Gann, Lewis. A History of Northern Rhodesia, Chatto & Windus. 1964. p.13, p.242.
[iii] Lugard, F.D. The Dual Mandate in British Tropical Africa. London: William Blackwood & Sons, 1922.
I don't think we should expect that customary law will involve less elite capture than the state system in any country / context. While I think that some "codification" / system strengthening and formalized structures can help reduce some of the ambiguities and discretionary decisions that lead to elite capture. Customary systems have the benefit of being able to evolve extremely fast and I believe there is an appetite for bridging the customary and statutory systems, both from a legal perspective and from a socio-cultural perspective as well. There are the areas where there may be tensions for example in the application of justice, inheritance, fee structures, etc., but these are places where dialogue, written rules, can help to navigate what is an acceptable norm and how it interacts with the statutory law.
Phillan is current registering his profile on the Land Portal. In the meantime he has submitted the article below. I have included his bio from the PLAAS website
Dr. Phillan Zamchiya officially joined the Institute for Poverty, Land and Agrarian Studies (PLAAS) as a senior researcher in 2017. He holds a Doctor of Philosophy (DPhil) in International Development from the University of Oxford. His academic interests are twofold. He studies contemporary trajectories of land and agrarian change in Southern Africa and the politics of post-colonial states in democratic transitions. He is currently the regional coordinator of PLAAS’s new project on the privatisation of customary land and women’s land rights in Zimbabwe, Mozambique, South Africa and Zambia.
State Politics & the Customary Power of Chiefs
Chieftaincy in Africa is shaped by developmental visions of the State, the political interests of the ruling elites and contested versions of customary law. This makes it difficult to analyse Chieftaincy as a static institution that is either independently acting to undermine decentralised democracy or progressive in preserving authentic customary role of representation. It is therefore imperative to analyse the actual functioning of States and Chiefs for appropriate policy positioning. I substantiate my argument with the case of Zimbabwe focusing on the colonial and post-colonial era.
The colonial history spans from 1890 when the British South Africa Company (BSAC) invaded the territory called Zimbabwe today and confined Africans into native reserves (later known as Tribal Trust Lands). For the large part, the British governed former native reserves through the Native Affairs Department established in 1894 which largely relied on customary law and local expertise. However, after the second world war the colonial state designed a range of high modernist interventions underpinned by the Native Land Husbandry Act (NLHA), promulgated in 1951. The idea was to displace the ‘backward’ and unproductive rule based on native customs. However, Africans rejected the type of modernization on offer amidst growing voices for African nationalism. The State blamed Africans’ traditional and ‘irrational’ custom which was said to be ‘unready for the strict discipline and rationality of high modernism’. Within this matrix, Chiefs were given back customary authority over land and local courts and some new powers and perks. Others agreed but some resisted as they clamoured for the return of colonised lands. When the Rhodesian Front came into power in 1962, it intensified efforts to co-opt Chiefs in order to convince the British Government that it had support to declare independence from British rule. It also wanted Chiefs to shield ‘peasants’ from supporting the liberation war fighters. By the 1970s, the Chiefs were in trouble as the armed struggle intensified. Some were considered sell-outs by nationalists and were killed whilst others were detained by the Rhodesian security for supporting the nationalists. At the dawn of independence in 1980, Chieftaincy was an institution in disarray and there were competing views about their role.
Nationalists who believed that the Chiefs were too ‘backward’ to implement modern development carried the day. This view was bolstered by the deep mistrust of Chiefs owing to their former co-option by the Rhodesian State. In 1984 Robert Mugabe gave a Prime Ministerial directive to restructure rural rule through Village Development Committees (VIDCOs) and Ward Development Committees (WADCOs). VIDCO was the basic unit of organisation and comprised of six elected adults and its duty was to plan and coordinate development at village level and report to the next level in the hierarchy, the WADCO, whose role was to coordinate the work of six VIDCOS and report to the next structure, the Rural District Council (RDC). The Chiefs whose authority was derived from a set of customary practices had to be side-lined, at least in theory, by the VIDCOs, WADCOs and RDCs whose authority was derived from democratic elections. In this era, the state even set aside the Chiefs’ vision for land reform as, “nationalism was not to be about the popularly controlled restitution of the lost lands but about productivity, delivered through a technocratic bureaucracy”. On the resettlement farms, government resettlement officers had authority over land.
However, some nationalist were still not happy with the side-lining of Chiefs and they thought that would spell political disaster. The view to radically depart from the modernising agenda to radical versions of nationalism with land as a central signifier started to gain resonance in the 1990s. This was because of the growing opposition to the ruling Zimbabwe African National Union Patriotic Front. It is within this context that Chiefs ‘returned’ to the centre stage with their powers restored through the Traditional Leaders Act [Chapter 29:17] in 1998. The VIDCOS were now to be chaired by the village head and the headmen sat in the WADCOs.
The ‘return’ of Chiefs did not stop the growing discontent which contributed to the formation of the opposition Movement for Democratic Change in 1999. It was within this context that war veterans led a series of violent ‘invasions’ of largely white-owned commercial farms from 2000 dubbed Fast Track. During Fast Track, the Chief’s representatives became part of the District Land Committee (DLC). DLC was in charge of allocating land to new beneficiaries, formalising occupations and deal with boundary disputes. It relied on custom, political power and coercive authority. On resettlement farms, the war veterans established a ‘committee of seven’ to govern the farms. Some evolved into VIDCOs. Some Chiefs appointed village heads to represent them in the farm committees. This was not always welcome by beneficiaries and led to violent clashes between Chiefs and the occupiers.
Be that as it may, ZANU PF intensified the use of patronage to win the support of Chiefs. They were given prebends and power to distribute patronage in the form of farming inputs and food aid. In return, President of the Chiefs’ Council, Fortune Charumbira, publicly ordered traditional leaders to support ZANU PF and was clear that: ‘ZANU-PF is the party of Chiefs’. Those who opposed could be dethroned by the President. Chiefs ‘returned’ not just on customary terms but were subordinated to a partisan State. The 2013 constitution also bolstered Chiefs’ powers by recognising their institution under customary law. Chiefs were given ‘jurisdiction and control over the communal land’. They can allocate residential and agricultural land but with the consent of RDCs and in line with customary law.
In the contemporary, some village heads living in communal areas near towns now illegally sell land to elites. This has led to enclosure of common property resources and miniaturisation of farms with women suffering the most. It is also evident that consultations and decision-making about big capital investments on customary land have become highly centralised at the apex of the traditional leadership with the Chief seen as the bastion of rural power. VIDCOs and WADCOs are being sidelined in consultations. Again, it is difficult to find one model of Chieftaincy. A few still favour an accountable system in line with customary practices. In such particular contexts, some women still prefer the customary systems because it is cheap, accessible, flexible and support wider land-based livelihoods despite some patriarchal practises.
Any policy efforts to democratise Chieftaincy, preserve its authentic customary role of representation or gradually modify it will need to face the reality that it is shaped by the developmental visions of the State, the political interests of the ruling elites and contested versions of customary practices. The resilience of Chieftaincy calls for incremental reforms of existing flexible customary arrangements than a radical departure that will hardly capture the lived realities.
In Zimbabwe this is the same. Traditional leadership structures run in parallel to government administrative structures. traditional leadership in Zim mostly brings a counter-balance to national politics.
agree with ipmanning
The Berlin Conference of 1884–1885 formalized the Scramble for Africa. The European powers grabbed massive territories and, after a period of subjugation, extraction, and socio-political changes, passed on political power to the native elites, leaving them with unrestrained control over the economy and largely tribal people. There was little thinking behind the change, simply an inevitable extension of neoliberal power. The question is: how to re-capture the spiritual kinship power of old and infuse it with true democracy. I believe this is possible if customary land is held sacrosanct, if the chiefs, headmen and spiritual guardians are democratically assisted by Citizens’ Assemblies, and manifestos produced that affirm the new kinship.
In general, they are countries ruled by pre-modern governments based on the Western capitalist model, having American-style executive presidents and a broken political party system, corrupt and subject to colonial aid, free trade, landgrabs, mining, industrial agriculture, etc. They are two-nation countries: 1) a pre-modern state, and 2) eco-socialist traditional customary society based on kinship and deep spirituality - the care of the land necessary to revere their ‘living ancestors.’ The pre-modern state is locked into a failing acquisitive system, the customary commoners subject to massive landgrabs and state capture of their natural resources.
TZ has inherited much of what was implemented there from Nigeria in 1926 under British Indirect Rule – a system ‘based on traditional sanctions for authority’ - where a semi-autonomous local government is enshrined in the constitution and empowered to promote development and democracy at the district and sub-district level. In Tanzania, there are district councils, wards and villagers who should formulate and approve by-laws and policies for their development and have committees dealing with education, health, environment, women and children, water, safety and security. Unusual for Africa, Tanzania’s local government is theoretically highly decentralized, making available a well-structured partner for villager welfare and investment and land care under customary tenure.
A major issue 1n 1959 was the eviction of the Maasai from Serengeti by the colonial government, but guaranteed the right to continue occupying Ngorongoro Conservation Area as a multiple land-use zone administered by the government. As Susanna Nordlund wrote: "This promise was not kept, and tourism revenue has turned into the paramount interest, while the human rights situation has deteriorated, which was worsened by the designation as a UNESCO World Heritage Site. In 1975, the Maasai living inside Ngorongoro Crater were violently evicted, and the same year cultivation was prohibited in NCA. This cultivation ban was lifted in 1992 but re-introduced in 2009 after threats from the UNESCO."
In 2015 a Parliamentary Select Committee reported the following:
1. Tanzania has no comprehensive mechanism to deal with land.
2. Weak law enforcement, contradictory legal regimes and ineffective and incompetent leaders were the major factors driving land conflicts.
3. There were several guiding principles that contradicted each other: the 1997 Land Policy contradicts the 2006 Livestock Policy - the former outlawing pastoralism, the latter allowing it.
4. Investors who need land are told they should enter into business ventures through the Tanzania Investment Centre (TIC), but the Land Act also allows the Land Ministry to sign up investors.
5. Only 1,200 villages out of more than 10,000 had been surveyed, and only a handful has land use plans, and there are no competent institutions able to supervise their implementation.
7. Conflicts involving farmers, pastoralists, investors and other land users are not only widespread, but they have persisted for a long time.
8. The land problems continue unabated despite the 1997 National Land Policy, which points to problems with implementation.
9. There are major shortcomings in the implementation of the 2006 Livestock Policy, including the failure to recognize livestock as wealth and therefore have land set aside for pastoralism.
10. There was no guidance on stocking rates.
11. Water policies are ineffectual due to water users and other stakeholders not being consulted.
12. There were serious flaws in the implementation of the Investment Policy, with landgrabbing taking place without consultation or compensation.
13. President Jakaya Kikwete’s directive to stop the movement of livestock from one district to another was ignored and Parliament should direct the government to make sure that livestock is transported using cars and trains.
14. The government should take immediate steps to control pastoralists from neighbouring countries.
15. The National Land Use Commission should assume responsibilities for landuse management
While comments were made on the 1997 Land Policy, no mention was made of the Land Act No. 5 of 1999 in which Certificates of the Customary Right of Occupancy have been issued on some 162,000 ha to the clans of the Maasai, Barbaig and Hadzabe. with more in the offing with the aid of an NGO, the Ujamaa Community Resource Team.
The record of oppression against the Maasai by the Tanzania army, park rangers, Ortello Business Corporation (OBC) of Dubai and Thomson Safaris of the USA is horrendous. In 2009 many Maasai and their cattle were brutally evicted from there. The Kiteto area to the south, populated by Maasai and Akiye hunter-gatherers, also continues to experience forced evictions and landgrabbing, outsiders believing that because parts of the area are unused seasonally, that it is vacant.
In 2015, Just Conservation described the situation along the borders of the Serengeti continued to deteriorate, numbers of Maasai settlements burned in Arash and Loosoito/Maaloni by Tanzania National Parks Authority (TANAPA), 8,000 cattle detained without water or feed for two days, and thousands of people left without food or shelter.
In 2017 the situation was dire; the campaign against the Maasai by landgrabbers revealed by Susanna Nordlund. On 13 August 2017, she records that TANAPA staff had begun to evict Maasai from the 1,500 km2 Osero area.
In September 2018, the East African Court of Justice granted an interim order preventing the government of Tanzania and OBC, from evicting four Maasai villages in their patch of Loliondo.
As Susanna Nordlund wrote on 18 November 2018 :
"In wide areas around the camp of OBC, that organizes hunting for Sheikh Mohammed of Dubai, people are being attacked and beaten, and chased away together with their cattle. This is not only a crime against human rights and Tanzanian law, but it’s a serious violation of interim orders issued by the East African Court of Justice on 25th September this year."
On 10 May 2021 the Oakland Institute released a report and press release about The Looming Threat of Eviction: The Continued Displacement of the Maasai Under the Guise of Conservation in Ngorongoro Conservation Area.
And in June 2021 Nordland commented on Ngorongoro and the genocidal MLUM review proposal.
And elsewhere fortress conservation had also had a calamitous effect on customary villagers. In April 2018, REDD-Monitor reported the Norwegian Government-funded Jane Goodall Institute’s REDD+ project in the Masito Ugalla ecosystem in the Kigoma district.
In 2007, the Jane Goodall Institute started its Masito Ugalla Ecosystem project, aimed at protecting about 70,000 hectares of forested landscape south of the Gombe National Park. Two years later, the Jane Goodall Institute received US$2.76 million from the Norwegian Embassy in Tanzania to implement REDD in the Masito Ugalla Ecosystem Pilot Area, together with the Woods Hole Research Center, Sokoine University of Agriculture, the University of Dar es Salaam and the Kigoma District Council
From this point, there emerges an appalling tale of neoliberal enforced development: land evictions, property destruction, brutal assault, corruption and failure on all fronts. In May 2019, one of the affected villagers, Nicodem Nicolaus, started a petition to raise funds to pay a lawyer to help them.
Their ability is deteriorating. But we all know this. We need a plan of action. I have proposed one in my Guardians of Eden Manual, available FREE from Kobo.
Your conclusion hit the nail on the head.
The 1975 Wildlife Act, which enabled a major decentralization allowing private ranchers ownership of their wildlife but also allowing communal land residents to receive benefits from safari-hunting, yet with no rights to the land itself or other natural resources.
This scheme on the customary commons, CAMPFIRE, was highly successful until 2000, with village and district wildlife committees writing wildlife management plans. They recognized that in the absence of local commitment, project management alone would not deliver sustainable management.
Since 2000, Zimbabwe has seen an almost total dismantling of CAMPFIRE. Once 90% of safari-hunting revenue went to the communal residents, this had dried up following a complete takeover of CAMPFIRE leadership by the new totalitarian elite. However, there are some signs – as in the Nkayi and Lupane districts - that it was not political factors alone that led to the decline and historical issues that shaped people’s views and resistance to CAMPFIRE. In 2007, Wolmer commented in "From Wilderness Vision to Farm Invasions: Conservation & Development in Zimbabwe’s South-east Lowveld" that ‘people are deeply disillusioned with the CAMPFIRE project on other grounds - particularly, a feeling that it has not delivered on its promises to transfer either money or political authority to the local level’.They were complaining that they had no secure tenure rights to the land. And they still have no secure tenure rights, resulting in land degradation and desertification. This can be seen by looking at Zimbabwe using Google Earth, a white, circular, and scarified moonscape revealed.
Read an EIA of the current situation.
We are posting the responses we received profiling the land governance system in Tanzania. Here traditional authorities were outlawed in the 1960s and have never been reinstated. Responses to the questions below need to take this into account.
Land Portal Online Discussion 2021
Customary law and institutions - Protecting or undermining community land rights in Southern Africa?
Tanzania
Google form returns summarised
Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems?
70%
10%
Data source
https://webapps.itc.utwente.nl/librarywww/papers_2009/msc/gimla/sanga.pdf
Experience
Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?
Yes. At Village Level, the highest decision making body according to the Village Land Act no 5 of 1999 is the Village Assembly and the day to day managerial and administrative functions are under the Village Council
No
Is there national legislation governing the role of traditional leadership institutions?
Yes. Village Land Act No 5 of 1999 http://lands.go.tz/uploads/documents/sw/1456410415-The%20Village%20Land%20Act%201999.%20Cap%20114.pdf
No
Status of customary law
It is legally recognised alongside statutory law
Customary law remains informal and in the margins
Is traditional leadership hereditary?
No
Not necessarily
Are there instances when traditional leaders are locally elected by their community?
Yes
Yes
Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?
Other: In Tanzania Chiefdoms were abolished in 1963 and therefore at village level leaders are elected.
Not applicable. In our country, Tanzania traditional leaders such as chiefs are not existing at all
Can women assume traditional leadership positions?
Yes
Do recognised traditional leaders receive salaries or stipends from the state?
No
Can they legitimately impose levies or fines on communities they represent?
No. Fines and levies are democratically decided upon through village by-laws if the land in question has undertaken land use plans and or the village has a certificate of village land and residents in the village issues with certificates of customary right CCROs
How would you rank the political influence of traditional leadership institutions?
[5] They are more dependent of the central government in many instances including allocation of funds for undertaking land use plans
What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?
As already explained above, the Village Council and the Village Assembly are responsible in allocating land to those living under their jurisdiction or those who apply for land in their jurisdiction.
How is land inherited and passed down the generations?
Individual families decide as per the traditions and customs but if the practice is discriminatory can be challenged in the court of law. All customs and traditions that have discriminatory elements are null and void.
Do customary law and institutions enable women to access land independently of men?
Other: Customs and traditions discriminate against women but the Village Land Act and other statutory pieces now recognize the right of women, so where women challenge the traditions they are granted rights. However, there is still a gap between theory and practice thus more efforts to raise awareness and empower women and community members to adopt to the new framework and recognize the right of women to own land.
How would you rank the security of women's land rights under customary tenure systems in Tanzania?
[4] As above elaborated, women land rights are enshrined in the policy and the laws of land but in practice they still face challenges in terms of applicability as not all appreciate such provisions. But at least they can be challenged in the court of law.
What role do traditional leaders and customary institutions play in mediating land related disputes?
The dispute settlement mechanism in Tanzania as far as land is concerned starts from the Village level where Village Land Tribunal is empowered to mediate using traditions and customs of the area before matters escalate further to other statutory bodies. At least villagers can use their customs and traditions to mediate land conflicts.
Which statement best describes customary institutions in the country under review?
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
General remarks and additional information
What we call customary tenure in our framework has been taking and adapting to changes since the introduction of colonial rule. Therefore even the framework can be said to be more dependent on the state as opposed to individual customs and traditions.
We are posting the amalagamated Zambia survey responses. These returns are not quote complete as some people have submitted from in the last coupled of days which will be added later. Many thanks to all who have participated. This is a rich a resource. Responses have been anonymised.
Land Portal Online Discussion 2021
Customary law and institutions - Protecting or undermining community land rights in Southern Africa?
Zambia
Google form returns summarised
Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems?
70%
90%
50%
90%
80%
70%
Data source
Own experience
Land Tenure Practice and Policy in Zambia
https://rightsandresources.org/wp-content/uploads/2020/09/Area-Study-Final-1.pdf
Government documents
Draft land policy
I've seen maps of state land and it's a minority. I've heard numbers above 80% but this says different: https://www.sciencedirect.com/science/article/abs/pii/S0264837715300041
Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?
Yes. For instance in western Zambia,there is traditional administration called a kuta where issues of land are adjudicated upon.
Yes. Land tenure in Zambia is dualistic: you own land in Zambia under customary or statute law. Land is allocated by a headman who through the council of elders presents a case to the Induna court for consideration and the chief is notified and land is granted or not. We have headmen, Indunas, Senior Indunas and then the Chief and Senior chief. We only have 3 paramount chiefs in Zambia.
Yes. 288 Chiefdoms with chiefs, headmen & spiritual guardians
Yes. Traditional leaders are the custodians of customary land
No. mainly, land is provided without the participation of the the particular land users
Yes
Is there national legislation governing the role of traditional leadership institutions?
Yes. In Zambia, there has been reforms with the latest national land policy which was recently launched by the ministry of lands and natural resources ,available on the website: www.mlnr.gov.zm
Yes. The Chiefs Act CHAPTER 287 OF THE LAWS OF ZAMBIA http://extwprlegs1.fao.org/docs/pdf/zam92744.pdf
Other: The pre-modernist state has laws of control, the chiefdoms not
Yes. Chiefs Act Cap 287
No
Yes
Status of customary law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
There are legally recognised traditional courts
There are legally recognised traditional courts
There is a reliance on codified customary law
There is a reliance on codified customary law
There is a reliance on codified customary law
There are legally recognised traditional courts
There is a reliance on living customary law
There is a reliance on living customary law
There is a reliance on living customary law
Customary law remains informal and in the margins
Customary law remains informal and in the margins
Customary law remains informal and in the margins
Is traditional leadership hereditary?
Yes. Traditional leadership is within certain family lineage and those belonging to such family lineage are chosen within their file and rank are chosen to assume the position of leadership. Simply put ,leaders are born in the lineage of leadership. Leadership is dependent on whether a particular tribe grouping is patrilineal or matrilineal
Yes
Yes
Yes
Yes
Are there instances when traditional leaders are locally elected by their community?
No
No
No
No
Yes
Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?
No. The change is still remains in the family and this very rare that there is loss of confidence and the Chief after all rules through the advisers and council of elders
No. A senior chief can attempt to remove a chief of his tribe, but rarely successful
No. Once appointed, new chiefs are only replaced following the demise of the previous one
No
Can women assume traditional leadership positions?
Yes
Yes
Yes
Yes
Yes
Do recognised traditional leaders receive salaries or stipends from the state?
Yes
Yes
Yes
Yes
Yes
Can they legitimately impose levies or fines on communities they represent?
Yes. Traditional leaders have enjoyed sovereign power over land issues, though there are changes as espoused in the new national land policy in Zambia.
Yes.Though these are not levies but entitlements to the support of the chief and the cultural heritage
No. Many of them are selling off their land in cahoots with the local District Council
No. Often the subjects are obligated to make contributions to the chief but not through legally imposed fines
Yes. They are able to do so
How would you rank the political influence of traditional leadership institutions?
[8]. Traditional leadership can only make appeal to its subordinates with regard to their choice on political leadership but cannot force or impose their political choice of leadership.
[9] The president can degazette a chief that is removed by law
[7] A national election is due in August 2021. The governing party the Patriotic Front and President Lungu are bribing chiefs for their support - although they are not supposed to take part in elections.
[7] Because of their hereditary status, all citizens including political leaders became subject to them in one way or another. Paradoxically, all land in the country is vested in the President, including customary land.
[7] They have greater influence
What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?
Traditional leadership have enjoyed sovereign power on allocation of land but is subject to change as espoused in the new national land policy in Zambia.
They are the originators of alienation and play a key role
It is a Headman's duty to allocate land on usufruct
Traditional leaders have powers to allocate land to their subjects (and outsiders) based on the prevailing customary laws
They allocate the land and ensure that its not sold
How is land inherited and passed down the generations?
Through the inheritance through family lineage chosen by the family council
Through the family tree
On usufruct within a family, provided the chief does not sell it or the state landgrab it for industrial agriculture
In most parts of the country, customary laws allow parents to bequeath their property, including land, to their children.
Through family lines
Do customary law and institutions enable women to access land independently of men?
Generally no
Increasingly yes.
Increasingly yes
Increasingly yes
Increasingly yes
How would you rank the security of women's land rights under customary tenure systems in Namibia
[3] Generally women land rights have been trampled upon over the years, though efforts of change are becoming evident as a result of gender advocacy.
[8]. This is just growing now. Iin the past) the patriarchal influence was so much
[3] Women are coming into the picture but in the main their rights are woeful
[7] Women who independently manage to acquire land in customary areas have the same rights as men. However, in cases of married women, their orientation, whether patrilineal or matrilineal, will often determine the rights of women.
[6] There's an increased improvement on women land ownership , however more is needed to be done
What role do traditional leaders and customary institutions play in mediating land related disputes?
Traditional leadership has provided a key role in resolving land disputes through traditional courts.
We have traditional land tribunals and courts
Being the custodians of customary land, they play a big role in resolving disputes on land
Most of land disputes and conflicts are settled or mediated by traditional leadership
Which statement best describes customary institutions in the country under review?
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
They remain adaptive and downwardly accountable and responsive to the land needs and rights of communities
None in national terms. The 288 chiefdoms fall under the House of Chiefs, which is part of the Ministry of Traditional Affairs, and therefore a government body, NOT a customary body.
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
They remain adaptive and downwardly accountable and responsive to the land needs and rights of communities
General remarks and additional information
None
Customary law in land always prevails and conversion is from customary to statute starting with a chief authorizing
The Chiefdom’s control of land has declined from 94% to 52% within 15 years or so. This requires a massive effort to bring the chiefs under democratic control - but recognizing their importance to their subjects, and to deal with the neocolonialist state.
Land Portal Online Discussion 2021
Customary law and institutions - Protecting or undermining community land rights in Southern Africa?
Zimbabwe
Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems?
40%
80%
70%
No answer
Data source
Estimation
Estimate
Publications
No answer
Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?
Yes. Traditional leaders
Yes. All communal land in Zimbabwe is administered through the traditional leaders act and places the traditional leaders as the management authority in the country
Yes. There is a 3 level hierarchy in the traditional leadership system in Zimbabwe, this consists of the village head, the headman and the chief at top of the hierarchy. These leaders form the most important part of the local governance system of the rural communities in Zimbabwe in as far as land allocation is concerned. These can be described as the custodians of communal land which falls under State Land (s4 of Communal Land Act provides that Communal Land shall be vested in the President who gives permission to occupy and to use). This power to give permission of use and occupation is delegated to the village heads, headmen and chiefs who do the actual allocation of communal land, oversee disposal of settlement rights and and admission of new settlers, consider requests for settlement by new settlers and ensure proper land use (among other duties), in terms of Section 5(1)(g) and (h) , Section 9(g) an Section 12 (1) (d), (e), (g)of the Traditional Leaders Act. The village heads who are the primary leaders are however required not to exercise their powers arbitrarily as they are expected to consult the village assemblies (dare in Shona or inkundla in Ndebele). The village assemblies consist of ALL inhabitants of the village aged 18 and above, it is important to note that the provision does not exclude women from being part of the dare/ inkundla. (Section 14 and 15 of the Traditional Leaders Act)
Is there national legislation governing the role of traditional leadership institutions?
Yes. Traditional Leaders Act and Constitution of Zimbabwe
Yes.
Yes. Traditional Leaders Act
Yes .
Constitution of Zimbabwe Amendment No 20 http://www.veritaszim.net/sites/veritas_d/files/Constitution%20of%20Zimbabwe%20Amendment%20%28No.%2020%29.pdf
Traditional Leaders Act Chapter 29.17
https://www.law.co.zw/download/traditional-leaders-act-chapter-2917/
Communal Land Act Chapter 20.40 law.co.zw
Customary Law and Local Courts Act Chapter 7.05 law.co.zw
Status of customary law
It is legally recognised alongside statutory law
It is legally recognised alongside statutory law
There are legally recognised traditional courts
There are legally recognised traditional courts
There are legally recognised traditional courts
There is a reliance on codified customary law
Customary law remains informal and in the margins
No answer
There is a reliance on living customary law
Is traditional leadership hereditary?
Yes
Yes
Yes
Yes
Are there instances when traditional leaders are locally elected by their community?
No
No
Yes
Yes
Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?
No
Yes
Yes. Yes if the community finds a traditional leader to incompetent or found guilt of not wrong doing he is replaced by another member from the family through the ministry of local government
Yes. Section 283 of the Constitution provides for the Appointment and removal of traditional leaders. Although this Section gives the President the powers to appoint Chiefs, the former can only do so in accordance with the prevailing culture, customs, traditions and practices of the communities concerned—villages and chiefdoms in Zimbabwe are generally constituted along family lines, i.e a village is usually composed of kinsman. In most cultures the kinsman get to sit down and deliberate (as an assembly/dare/inkundla) on the appointment, suspension, succession and removal of traditional leaders. The Constitution also gives room for fellow Chiefs through the provincial assembly of Chiefs and the National Council of Chiefs to oversee and regulate the ethical conduct of the traditional leadership and these two bodies to make recommendations on appointment, suspension and removal of Chiefs.
Can women assume traditional leadership positions?
Yes. In the main, women do not assume traditional leadership but there is a woman Chief in Zimbabwe.
Yes. It depends with circumstances.
Yes
Yes
Do recognised traditional leaders receive salaries or stipends from the state?
Yes
Yes
Yes
Yes
Can they legitimately impose levies or fines on communities they represent?
Yes
Yes. For community development initiatives
Yes. Communities are grouped into villages administered by a village head (sabhuku) a group of villages forms a ward administered by the headman and a group of wards formulate a constituency administered by the chief. Village head reports to the headman and the headman reports to the chief. The traditional courts handles civil cases and lessor serious criminal cases. Offenders at the village level are fined up to the level of a goat or US$40 whereas cases that exceed that weight are handled by the headman and then the chief in terms of hierarchy
Yes. Section 5 (1) (f) of the Traditional Leaders Act gives the Chiefs the power to oversee the collection by village heads of levies, taxes, rates and charges payable in terms of the Rural District Councils Act Chapter 29:13.
How would you rank the political influence of traditional leadership institutions?
[8] Traditional leaders are beholden to the governing party through salaries and incentives
[7]
[6] Cases of political influence in civil matters are evident in the country. Sometimes political institutions influence traditional leaders to arbitrarily punish perceived political opponents eg some political opponents have been attempted to be evicted from communal land by village heads
[8] According to the stats on https://www.indexmundi.com/facts/zimbabwe/indicator/, The Rural population (% of total population) in Zimbabwe was 67.79 as of 2018. This means the majority of the Zimbabwean population is in the rural areas, a study of the Zimbabwean elections for parliamentary and presidential seats has shown that the rural vote is the major determining factor on who gets to head the country and who has the parliamentary majority. If these facts are tied to the role that the minister responsible for local government and the president play in the appointing of chiefs and also the issue of remunerations of the said traditional leaders, one can easily get an appreciation of how the chiefs can be influential in the politics at national level. It is also important to state that the rural areas are endowed with many mineral resources and exploitation of such resources on rural land usually requires the buy in of the local leaders. Without proper checks and balances it is easy for the traditional leaders to collude with political leaders or big corporates to deprive communities of their rights to land and resources attached to the land.
What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?
They allocate land to households
They allocate land in communal areas
Traditional leaders are the key institutions that allocated communal land in the country
Village heads, headmen and chiefs have the power to allocate communal land, oversee disposal of settlement rights and and admission of new settlers consider requests for settlement by new settlers and ensure proper land use (among other duties), in terms of Section 5(1)(g) and (h) , Section 9(g) an Section 12 (1) (d), (e), (g)of the Traditional Leaders Act.
How is land inherited and passed down the generations?
Through genealogy generally to married men
Patriarchal inheritance within the family
In most cases it's the eldest son who inherits the land in the country although this differs across tribes
Land is usually inherited by the eldest son of the family and in some instances the brothers of the deceased male head are given a chance to head the family of the deceased especially where the eldest son is considered too young to take charge. The justification for this approach in customary law is the eldest male is supposed to be the head of the family and he should take care of the rest of the family, he therefore inherits from the estate more on a trustee basis and the surviving spouse and the other children are beneficiaries to the property held in trust.
Do customary law and institutions enable women to access land independently of men?
Generally no
Generally no
Generally no
Increasingly yes
How would you rank the security of women's land rights under customary tenure systems in Zimbabwe
[4] There is growing awareness of the girl child
[4] Land is usually inherited through the male line
[3] In general woman are not allowed to inherit land in the country unless in households where there are no males
[3] Under customary law, the women's access to land is largely dependant on their male kinsman. Ordinarily, a woman accesses communal land indirectly through her husband, father or brother. When village heads allocate land to families, it usually the male head of the family who is allocated a piece of land and his wife and children become beneficiaries. it is important to note however that where a family has no male figures, wives to deceased land owners usually remain on the estates and there rarely have been cases where these widows are evicted.
What role do traditional leaders and customary institutions play in mediating land related disputes?
They are the court of first instance
Allocation and conflict adjudication
Infact traditional leaders are responsible for administration of communal land in the country
The Traditional Leaders Act give traditional leaders the power to settle disputes on grazing land and land boundaries and Section 282 (2) of the Constitution provides that traditional leaders have authority, jurisdiction and control over the Communal Land or other areas for
which they have been appointed, and over persons within those Communal Lands or
areas.
Which statement best describes customary institutions in the country under review?
They have been increasingly captured by elites and have become vehicles to accumulate power and wealth
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
They remain adaptive and downwardly accountable and responsive to the land needs and rights of communities
There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian
General remarks and additional information
The proposed national land policy intends to harmonise and modernise customary and statutory laws
There are three different land ownership systems in the country private stateland and communal land stateland is composed of mostly resettled land and is administered through state institutions like the land administration and land commission.
Dear participants,
For the second week of discussion starting on Monday (5h July) we will move the conversation back to the plenary space. The country pages will remain open over the week as 'read only’.
Let us know your thoughts! This week we will talk about:
1. How customary law is adapting to protect women's land rights?
2. What good practices exist in liking statutory and customary institutions?
3. If SADC was to develop a policy on land governance, what would be your recommendations so that it recognises customary law and institutions?