32. Kajoba, Gear M.: The Landmarks of Zambia’s Land Tenure System: from Protectionism to Empowerment

e-mail: gkajoba@natsci.unza.zm

ABSTRACT

The paper attempts to argue that for most of the period after the attainment of political Independence on October 24, 1964, Zambia’s land policies assumed a protectionist

posture. By protectionism is meant the policies by which the ruling United National Independence Party (UNIP) and the State under former President Dr. Kenneth Kaunda, assumed ownership or guardianship over the control of land in order to constrict private individual ownership on the basis of the prevailing ideology of Humanism which glorified customary tenure, and the superiority of public ownership of the means of production over individual private ownership.

On the other hand, the introduction of plural politics in 1991 by the Movement for Multiparty Democracy (MMD) and the government of President Frederick Chiluba, saw the introduction of policies of empowerment. This refers to the set of policies which embody the philosophical position that individual farmers - both men and women, together with external investors, should be allowed the opportunity to own land privately under leasehold title, so that such land may have a market value, and be an incentive to those who possess it so that they become motivated to use it more productively and sustainably as interested stakeholders.

The paper therefore traces the evolution of these policies through a review of major legislation on land.

LAND POLICIES DURING THE FIRST AND SECOND REPUBLICS: 1964-1991

At Independence, Zambia inherited a dualistic land tenure system. On the one hand there was land which could be acquired under English Law (i.e. Crown land which became State land), and that which fell under customary law (i.e. Native Reserves, and Native Trustland including Barotseland). Crown land was held on either freehold or leasehold tenure (Siddle, 1971; Mvunga, 1980), while the term ‘native’ was dropped from the other categories which fell under the control of traditional leaders such as headmen and chiefs (Fig. 1).

Fig. 1 Land Rights in Zambia at Independence

While Zambia covers a total land mass of 75 million hectares, State land comprises of 4.5 million ha. (6%), while Reserve Land 27.2 million ha. (36.2% and Trustland approximately 43.3 million ha. (57.7%). (Zulu, 1993, p41). Africans on Reserve and Trustlands were "protected" since colonial rule in that non indigenous people and charitable organisations could not acquire land in these areas for more than 5 years and 33 years, respectively.

Since independence developments in land policies have been gradual or evolutionary rather than revolutionary, reflecting the nature of political developments especially during the First (1964-73) and Second (1973-1991) Republics, under UNIP and Dr. Kaunda.

Due to agitation for land reform in the aftermath of independence in which the Zambian people expected to reclaim part of the land that had been alienated for European settler use during the colonial period, especially along the line of rail, the 1967 Land Commission was appointed to address the issue. (GRZ, 1967).

The Commission made recommendations which among other things vested all land in the president of the Republic, and suggested that payment, either by way of rent or of purchase price shall be required to be made for the privilege of using land wherever it may be situated (GRZ, 1967, p161 and p165). Furthermore, it was suggested that state titles should be granted to those persons who were occupying customary land but wanted to have it converted in order to have more secure rights in land (GRZ, 1967, p112).

However, the 1967 Land Commission Report was not made public by the government, and the crucial recommendation of giving all land a market value was thus silently rejected, until 1991 when the MMD reintroduced the principle.

The Rise of Nationalism

Although the recommendations of the 1967 Land Commission were not made public by either accepting or rejecting them formally, nationalist feelings over land however, continued to increase. The Zambia (State Lands and Native Reserves) order 1964; the Zambia (Trust Land) Order 1964 and the Zambia (Gwembe District) Order 1964, all had the provision that "any estate, right or interest in or over any land or immovable property which the governor of Northern Rhodesia prior to independence created, granted, recognized or otherwise acknowledged ... should continue to have the same validity as they had before independence" (GRZ, 1967, p25; Kajoba, 1990).

These and other constitutional provisions were viewed by the Zambia people and government as being meant to protect foreign colonial settler interests in land. In order to make privately held land by absentee land lords available for use by Zambians, a Referendum was held in 1969 to make it possible for the Zambian government to remove constitutional protection of entrenched clauses.

Thus, in 1970 the Lands Acquisition Act was passed which stated in part that "the President may, whenever he is of the opinion that it is desirable or expedient in the interests of the Republic so to do, compulsorily acquire any property of any description" (GRZ, 1970, Lands Acquisition Act, CAP 296, p4). However, the Act also made provision for compensation to be paid for such property acquired. This could be in cash or kind (where a grant of State land not exceeding in value the value of the land acquired was given in lieu ) (GRZ, 1970, p 6-7).

The Radicalization of UNIP: The achievement of political independence also facilitated a segment of the Zambian population with state connections to acquire land and property in state land especially along the line of rail - more especially in the Southern Province, in those areas where land was exclusively reserved for European use (Baylies, 1979). Baylies further argued that the emergence of indigenous capitalist agriculture especially in Southern Province, would have ramifications for the entire Zambian economy.

However, the struggle for national liberation in Southern Africa in the 1970s of which Zambia was a frontliner, saw the emergence of a ‘radical’ political ideology in UNIP (i.e. the philosophy of Humanism) which was articulated by Dr. Kaunda. In a veiled way, Humanism advocated for a socialist oriented economic policy in which the state played a leading role in the ownership of the means of production (such as land), and in the management of the economy as a whole. Dr. Kaunda argued that land must remain the property of the state as it was never bought under African tradition (Kaunda, 1968, p14).

In his later document Dr. Kaunda further elaborated on the issue of land. He condemned what he regarded as the capitalist manipulation of land price through speculation and land lordism (Kaunda, 1974, p74).

In view of the above, the ruling political party U.N.I.P. in the one Party State, decided to spell out in no uncertain terms that it would continue with its protectionist policies in its manifesto. All land would continue to be the property of the state, vested in the President; that all existing free hold titles were to be converted to leasehold titles for 100 years; that "capitalistic practices" of subdivision and speculation would be controlled and that conditions would be established to facilitate proper utilization of land in the "national interest". (UNIP, 1973, p 36-37).

Thus following what became known as the "watershed speech" of June 30, 1975 by Dr. Kaunda, the Land Conversion of Titles Act, 1975 was passed. The Act stated in part that "Every piece or parcel of land which immediately before the commencement of this Act was vested in or held by any person - (a) absolutely, or as a freehold or in fee simple or in any other manner implying absolute rights in perpetuity; or (b) as a leasehold ... extending beyond the expiration of one hundred years from the commencement of this act; is hereby converted to a statutory leasehold and shall be deemed to have been so converted with effect from the first day of July, 1975" (GRZ, 1975, p6).

According to Mvunga (1982), the 1975 land reforms resulting from the passage of this Act resulted:- in the seizure by the state of all unutilised land which was held by commercial farmers; the abolition of the sale of vacant land; the closure of all real estate agencies; and the seizure of all rented blocks of flats and buildings whose cost had been realised (Mvunga, 1982, p85).

It can be argued that because of these measures, in effect, land in Zambia had no market value legally, although individuals could sell "improvements" on it.

The Beginnings of Flexibility: Although UNIP held on to its protectionist land policies, there were beginnings of some flexibility with respect to the future of Reserve and Trust Lands. Cries of land hunger were still heard from some parts of the country especially in the Southern Province where peasants "complained that even after the 1969 referendum, which they supported, the government itself took the farms of absentee landlords and established state ranches instead of releasing them to the needy peasants" (GRZ, 1982, p18).

The Sakala Land Commission of 1982 which looked into land matters in the Southern Province, recommended among other things that some land under customary law in Reserves and Trustland areas could be converted to leasehold, in order to facilitate agricultural development in settlement schemes especially by those in crowded areas. This seems to have been accepted by the government as legal provision was subsequently made allowing individuals to convert up 250 ha. of such traditional land (GRZ, 1985, p3). However, a proposal to introduce a land tax to be paid by all land users including peasants was rejected by the UNIP government (GRZ, 1985a, p16-17).

Despite this apparent flexibility, protectionist land policies were still adhered to as can be deduced from the offers for title deeds (on all land use categories such as agricultural, residential, industrial, commercial and recreational), which were made during the last six years of Dr. Kaunda’s government, presented in table 1.:

Table 1. OFFERS FOR TITLE DEEDS ISSUED BETWEEN 01/11/85 TO 31/10/91 IN ZAMBIA

(Source: Lands and Deeds Registry Lusaka, November 1997)

The data in table 1 show that in the last six years of the Second Republic, offers for leasehold title deeds to individuals for 99 years were very low. Those to men were only 145 or 2.6% of the total, and those to women were insignificant as they totaled only 22 or 0.4% of the national total. However, offers to the category "others", which includes companies, parastatals and charitable organizations totaled 5,398 or 97% of the total. Also, few offers were made outside the line of rail provinces of Lusaka and the Copperbelt where urban populations reside.

This goes to show that the UNIP government in accordance with its philosophy of Humanism, placed more emphasis on institutional applications for title deeds, rather than on empowering individuals. The trend reflects the thinking at the time of ‘protecting’ the natural resource (i.e. land) by placing most of it under group, collective or institutional ownership. In this regard Bruce and Dorner (1982) observed that "the philosophy of Humanism as enunciated by the government of Zambia forecloses certain tenurial options. An obvious example is freehold, while leasehold appears to be acceptable" (Bruce and Dorner, 1982, p40).

It may be added quickly here that even for leasehold, preference was for institutions such as companies, parastatals and charitable organizations instead of empowering ordinary men and women. This was in accordance with the socialist oriented protectionist land policies, especially in rural provinces where land is held under customary tenure.

LAND POLICIES IN THE THIRD REPUBLIC: 1991 - 1997

With the birth of plural politics in Zambia and the coming to power of the Movement for Multi-Party Democracy (MMD) government of President Chiluba in the Third Republic in November 1991, the political pendulum has somewhat swung in the direction requiring that land in Zambia should have a market value.

This swing of the pendulum has taken place within the context of global, post cold war Economic Restructuring Programmes and Economic Liberalization. In Zambia, the swing has meant a move from land policies which stress protectionism to those which promote empowerment - which embraces the assumed advantages of giving individual control/ownership of land to those who cultivate it.

In 1993, the National Conference on Land Policy and Legal Reform in the Third Republic recommended among other things that there should be two classes of land - namely, state land and customary land "and the respective interests be a ninety-nine (99) year lease with provision for automatic renewal and customary interests that can be subject to specific grants of specific durations to be determined according to the purpose for which the grant is made" (Ng’andwe, 1993, p203).

Furthermore, the role of chiefs in policy formulation and their participation in allocation of land in the customary sector was explicitly recognised. While it was recommended that in state land market forces should determine the price of land, it was argued that "in customary land a system of pricing if need be should be left to evolve according to rural conditions" (Ng’andwe, 1993, p206). With respect to the status of women and vulnerable groups, it was strongly emphasised that the universal principle of equality be applied to the ownership of land. In order to facilitate the proper implementation of land reforms in rural areas, it was recommended that a Land Development Fund be created to improve infrastructure in rural areas to facilitate settlements.

This conference was greatly influenced by the MMD policy on land which was contained in its manifesto, which stated in part that "the MMD shall institutionalise a modern, coherent, simplified and relevant land law code intended to ensure the fundamental right to private property and ownership of land ..." (MMD, 1991, p7). The manifesto went on to state that it aimed at making legislation that would restore the confidence in land investors and would "attach economic value to undeveloped land, encourage private real estate agency business, promote the regular issuance of title deeds to productive land owners in both rural and urban areas ..." (MMD, 1991, p7).

Thus after a heated national debate which saw the withdrawal of the initial land Bill (because it was perceived by the opposition that customary tenure and the position of chiefs would be threatened), the Lands Act of 1995 was enacted and passed by Parliament. The Act continued to vest all land in the President who is required to give consent to a person who wishes to sell, transfer or assign any land. The Act further continues to recognise customary tenure, although any person who holds land under customary tenure may convert it into a leasehold, not exceeding 99 years, or any other title that the President may grant.

In order to foster cooperation from traditional leaders in matters concerning conversion, the Lands Act of 1995 states in part that the President "shall not alienate any land situated in a district or an area where land is held under customary tenure without taking into consideration the local customary law on land tenure ... [and] without consulting the chief and the local authority in the area in which the land to be alienated is situated ..." (GRZ, 1995, p. 271).

The Act also, made provision for the establishment of the Lands Tribunal whose jurisdiction is to settle disputes relating to land including matters of compensation to be paid as the situation may require.

In order to give value to land, the Act states, that "the President shall not alienate any land ... without receiving any consideration, in money for such alienation and ground rent for such land except where the alienation is for a public purpose," and where "a person has the right of use and occupation of land under customary law and wishes to convert such right into leasehold tenure ..." (GRZ, 1995, p. 272). With respect to non-Zambians, the Lands Act of 1995 makes provision that the President may alienate land to a non-Zambian who is a permanent resident and to those who are investors within the meaning of the Investment Act of 1993.

Thus, table 2 shows the offers for title deeds which have been issued during the six years of the MMD government:

Table 2. OFFERS FOR TITLE DEEDS ISSUED BETWEEN 01/11/91 TO 03/11/97 IN ZAMBIA

(Source: Lands and Deeds Registry, Lusaka, November 1997)

The data in table 2 would seem to suggest that with the coming of the MMD to power, and the introduction of economic restructuring, more offers for title deeds have been made to individuals rather than to institutions. Offers to males constitute 66.4% of the national total, and those to women at 14.0%. The two categories constitute 80.4% in contrast to offers for institutions at 19.6% of the total.

Thus, while institutional offers for title deeds during the last six years of UNIP rule constituted 97% of the total, those under the MMD constitute only 19.6% of the total; but individual offers constitute 3% (UNIP) and 80.4% (MMD) of the total, respectively.

The data show that there has been a tremendous reduction of group or institutional offers, but a big increase in individual offers in the Third Republic. This could reflect the new policies of empowerment of individual men and women, although there is room to encourage more women participation as recent studies show that women even in rural areas are interested in obtaining title to their customary land but lack information on how to obtain such title (Kajoba, 1997).

Regionally, the line of rail provinces such as Lusaka and the Copperbelt continue to attract more offers. But it is interesting to note that although in percentage terms the trends are about the same for the Western Province during the UNIP (6.5%) and MMD (5.5%) rule respectively, there is an appreciable absolute increase in offers, despite the fact that traditional authority tends to be much stronger here rather than perhaps elsewhere in rural Zambia, given the history of the region as a ‘protectorate’ since the colonial times.

The policy of empowerment was exemplified in the run up to the November 1996 general and presidential elections when President Chiluba decreed that local authorities and City Councils (and later the government and the Mines) should sell houses to sitting tenants, in order to make ordinary working people become property owners.

CONCLUSION

The paper has attempted to contrast the land policies of the UNIP and MMD governments in the past twelve years, and argued that during Dr. Kaunda’s government, protectionist policies were implemented which emphasised group or institutional ownership of land and discouraged individual ownership. This was due to the philosophy of Humanism which was opposed to the idea of giving land a market value and opposed the promoting of agrarian capitalism, in preference for socialist oriented production units.

On the other hand, the MMD government of President Chiluba, has quickly moved to try and popularise the concept of individual land ownership and the policy of empowerment, by clearly stating that individuals occupying customary land can convert it to leasehold tenure for 99 years, although conversion policy goes back to 1985 during the UNIP government.

The policy of empowering people has been dramatically exemplified by the sale of some houses to sitting tenants. It would therefore seem that the MMD government’s mission or vision, is to fulfill aspirations for land reform in which land has a market value which date back to the early years of independence; and by implication both men and women plus external investors can be empowered with title deeds for 99 years.

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