Between 25thMarch 2022 and 1st April 2022 Parliament passed amendments to six land-related Bills[i] to revise the legislation enacted in 2016. The amendments comprise the Land Amendment Act[ii], the Customary Land Amendment Act[iii], the Physical Planning Amendment Act[iv], the Land Survey Amendment Act[v], the Registered Land Amendment Act[vi] and the Lands Acquisition Amendment Act[vii]. These were intended to address public concerns about some of the provisions in the 2016 legislation. Specifically, the President highlighted some of these in Parliament on 20 October 2020, including restricting foreign ownership of land, abolition of freehold land, as well as the prohibiting sale of registered customary land. In this brief, I analyse the status of freehold land in the Land Amendment Act 2022in the context of Malawi’s colonial legacy and its current Constitution.
The Land Act Amendment Act 2022 revises the Land Act 2016 which repealed and replaced the Land Act 1965. One of the major changes introduced by the Land Act 2016 was the categorization of land. Unlike the Land Act 1965 which categorised land as public, private, and customary land, the Land Act2016 only recognised public land and private land, effectively abolishing customary land[viii]. The reasoning behind this was that all customary land would be registered and therefore become private land, while unallocated customary land became public land. This change did not consider what category unregistered customary land would belong to and, bearing in mind that registration of customary land is likely to take no less than a decade to complete, there was a major gap in the law. The Land Amendment Act 2022 has consequently reintroduced customary land as a category[ix]. Consequently, private land includes freehold, leasehold, and registered customary land, while unregistered and unallocated customary land continues to be customary land[x] as before the enactment of the Land Act 2016.
With regard to freehold land, the Land Act 2016 prohibited new grants of freehold land[xi] but retained existing titles and only in favour of citizens of Malawi[xii]. The main concern with freehold tenure is that, apart from being a relic of colonial policy, it provides certain benefits and privileges that are not available to other land categories such as customary or leasehold land[xiii]. As the name suggests, freehold land is held free of title limitations but, more importantly, because it is practically held forever, freeholds enjoy more value than other categories of land on the market. In addition, freehold landowners, unlike leasehold owners, do not pay ground rent to Government, thereby further enhancing their values. These advantages are neither natural to nor inherent attributes of the concerned land parcels; they were granted by the colonial administration to white settlers. The amount of freehold is estimated at 3% of the total land available, a figure the supporters of this tenure use to justify its retention, in addition to the perceived contribution of freehold tenure to the national economy[xiv].
To date, a few elite Malawians and foreigners own freehold titles, essentially because this land was originally the preserve of the white settlers. Some of the largest and most fertile land parcels under tea, coffee and some tobacco plantations are held under freehold tenure. The fact that some of these parcels are surrounded by some of the country’s most densely populated areas and land-poor communities, such as Mulanje and Thyolo, has made freeholds a target of those who agitate for land redistribution. Further, while leasehold tenure, which is held for a defined period, gives the Government options to take back the land upon expiry of the term and redistribute the land, freehold titles offer no such option.
In addition, freehold tenure is perceived as free from government control[xv]; and although this has no basis either at common law or practice anywhere in the world[xvi], freehold landowners eschew government control. However, the manner the post-independence and now repealed Land Act 1965 treated freehold land emboldened this perception. Thus, while sections 8 and 25 of the Land Act 1965 respectively vested public land and customary land in the President as head of state, freehold land was not vested in anyone, giving the impression either that the independent state had no title or control over freehold land or that freehold land continued to be vested in or held of the British Crown, even after independence.
Either way, freeholds effectively operated as Crown enclaves in an independent Malawi. It was not until section 207 of the Constitution 1994 vested all land in the Republic that freehold land is properly vested in the State of Malawi[xvii]. Following the Constitution, section 8 of the Land Act 2016 vested all land in the Republic, confirming that freehold land is finally held of the Republic and the ultimate or root of title vests in the state[xviii]. Section 9 of the Land Act 2016 prohibited grants of freehold land, precipitating the struggle to remove this colonial remnant from independent Malawi[xix]. The provision, however, retained existing freeholds, but vacant freeholds were subjected to development control, just as all leaseholds are. In addition, in accordance with the National Land Policy 2002, only Malawi citizens would be allowed to own freehold land, and foreigners would be allowed to keep their freeholds if they acquired Malawi citizenship within 3 years of the commencement of the Act[xx].
However, the draftsman, most likely in a frenzy of last minute changes[xxi], deleted clause 9 (2) of the Land Bill but left clause39 intact, making it impossible to implement what was intended. The Land Amendment Act 2022 has rectified section 39 of the Land Act 2016 and provides that where a freehold owner fails to commence development within 2 years of commencement of the Act, the Minister can acquire the land subject to payment of compensation[xxii]. There is no reference to the requirement that foreigners must acquire citizenship if they wish to retain freehold land existing prior to the Land Act 2016.
The effect of these amendments is that no new freeholds can be granted, existing freeholds –
whether owned by Malawians or not – are valid, and development of such freeholds must commence within 2 years of the coming into force of the Land Amendment Act 2022. There is no definition of ‘development’ within 2 years or how the law will treat large freehold parcels under plantations which have vast tracts that have never been cultivated or used for decades.
The hesitancy to change land legislation is being justified on the basis that the Constitution prohibits arbitrary deprivation of property rights[xxiii]. Further, it seems the ugly head of colonial vested interests was retained in the Constitution which provides that ‘all persons who have rights in property at the date of the commencement of this Constitution shall continue to have such rights under this Constitution and any other law’[xxiv]. Some have read this to mean that Parliament cannot change property rights such as freehold land. This reading is untenable considering that the Constitution clearly states that property rights are not sacrosanct[xxv].
The Constitution further requires that the State must eradicate social inequalities and injustices and justify its policies to promote the right to development[xxvi]; that the power to make law is intended to promote the interests of the people of Malawi[xxvii]; and that all legal and political authority derives from the people of Malawi and must be exercised solely to serve and protect their interests[xxviii]. The removal of an alien land tenure system such as freehold, whose retention serves neocolonial interests, serves and protects the interests of the people of Malawi and will be upheld by the Constitution. Freehold land is at odds with the Constitution of Malawi.
In conclusion, it can be argued that in accordance with the Constitution the Land Amendment Act 2022 has taken some steps towards regaining control over land sovereignty. However, the policy chaos around the amendments demonstrates the power of vested interests in freehold tenure. The National Land Policy 2002 directive that only Malawi citizens should own freehold land faced serious resistance leading to a last minute amendment that left a lacuna in the Land Act 2016. The Land Amendment 2022 has attempted to close the lacuna but effectively abandoned the requirement that only Malawi citizens can own freehold land[xxix]. The Act, however, exerts some control over freehold land by requiring that development of any vacant freehold land commence within 2 years of its coming into force. No definition of commencement of development is provided for, leaving open the question whether erecting a fence is development or whether large freehold agriculture estates which only cultivate a fraction of their land, are covered. But more importantly, the amendment requires that compensation be paid where a freehold land holder fails to comply with the development requirement. The legal implications and constitutional justification of this provision require further unpacking.
Note
The phrase “tenants of the crown” was first used by Professor HWO Okoth Ogendo, 1991, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, Nairobi: ACTS Press
[i]See Malawi Gazette Supplement, dated 21st January 2022.
[ii]B. No.1.
[iii]B. No. 6.
[iv]B. No. 3.
[v]B. No. 2.
[vi]B. No. 4.
[vii]B. No. 5.
[viii]See section 7 of the Land Act 2016.
[ix]See section 4 of the Land Amendment Act 2022.
[x]See the definition of ‘public land’ under section 2 of the Land Act 2016 and section 2 of the Land Amendment Act 2022.By defining unallocated customary land as public land, the Land Act 2016 effectively expropriated communal land. The Land Amendment Act 2022 has reversed this and put this land back to the communal pool.
[xi]See section 9 as read with section 39 of the Land Act 2016.
[xii]See clause 9 of the Land Bill 2016 which proposed the conversion of freehold land to leasehold.
[xiii]See Ministry of Lands, Housing and Urban Development, 2021, Report of Review of Land Related Legislation, Lilongwe.
[xiv]Ibid. See also statement of the then Minister of Lands, Hon Atupele Muluzi: see News24, 15 July 2016, ‘Malawi’s new land bill protects descendants of colonial settlers’, accessed at: https://www.news24.com/News24/malawis-new-land-bill-protects-descendants-of-colonial-settlers-20160715 on 15 April 2022.
[xv]See Government of Malawi, National Land Policy 2002, Ministry of Lands, Housing and Urban Development p. 9.
[xvi]Ibid.
[xvii]See section 209 of the Constitution.
[xviii]The Republic is defined in section 2 of the General Interpretation Act as the Republic of Malawi. Essentially, the Republic is synonymous with the state. The Oxford dictionary defines republic as a ‘state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch’: www.oxfordreference.com. A state comprises a population, territory, a government and sovereignty.Land in Malawi therefore is vested in the State and not Government..
[xix]Freehold tenure is a wholly English cultural construct and has no basis in Malawi’s cultural tradition: for a similar observation in relation to freehold land in Botswana, see Clement Ng’ong’ola, ‘Land Tenure Reform Botswana: Post-colonial Developments and Future Prospects’ (1996) 11 SAPR/PL, p. 2. This tenure evolved from the conquest of England by William I of Normandy in 1066 who declared the whole of England as his property: see Megary& Wade, A Manual of the Law Real Property (Sweet & Maxwell, London).
[xx]See clauses 9 (2) and 39 of the Land Bill 2015.
[xxi]There was some political drama in Parliament following the deletion when the Malawi Congress Party, then then main opposition, walked out of the chamber in protest at the deletion: see note 15, supra.
[xxii]See section 11 of the Land Amendment Act 2022.
[xxiii]See sections 28, 29, 44 (3) of the Constitution which, inter alia, prohibit arbitrary deprivation of property rights.
[xxiv]Section 209 of the Constitution 1994. For a review of stakeholders inputs, see note 13, supra.
[xxv]Property rights are not among the rights that cannot be restricted or derogated from under section 44 (1) of the Constitution. Consequently, so long the restrictions comply with section 44 (2), namely, that the restriction is reasonable, recognised under international standards and necessary in an open and democratic society.
[xxvi]Section 30 of the Constitution 1994.
[xxvii]Section 8 of the Constitution 1994.
[xxviii]Section 12 (1) of the Constitution 1994.
[xxix]The cruel irony is that the party that walked out in 2016 while in opposition faced exactly the same dilemma in 2022 while in Government: see note 22. Political scientists will debate who fared better in the face of neocolonial vested interests in land tenure relations.