GOVERNMENT OF MALAWI

LAND REFORM AND POVERTY REDUCTION IN MALAWI

A Paper

Presented at the Decision Makers’ Meeting on Good Administration of Lands

Land Administration for Poverty Reduction and Economic Growth

Polytech HotelSchool in Windhoek, Namibia

7-8 December, 2006

1.INTRODUCTION

Poverty in Malawi is deep, severe and pervasive, where more than 52% of the population live below the poverty line[1] (IHS 2005). The majority of these are rural based and are largely dependent on agriculture, and therefore on land, for their livelihood. Considering the fact that inadequate access to land is a critical contributing factor to food security and poverty in the country, there is economic sense in handling land issues as a pre-requisite for sustainable pro-poor growth.

Malawi continues to heavily depend on agriculture, and therefore on land, for the growth of the economy and sustenance people’s livelihoods. This is particularly true for smallholder agriculture which contributes the largest proportion (more than 80%) of agricultural production. Agriculture alone accounts for more than 35% of the country’s Gross Domestic Product (GDP) and about 90% of export earnings. Smallholder agriculture dominates the sector and employs more than 80% of the rural labour force. Smallholder agriculture alone contributes about 30% of GDP, which means that increasing smallholder agricultural productivity is key to rapid and sustainable economic growth and poverty reduction for Malawi. However, smallholder agricultural productivity is still low and hampered by, among other things, poor access to factors of production, especially land and capital.

The Malawi Growth and Development Strategy, which is an overarching strategy for sustainable economic growth and poverty reduction in Malawi, has identified a number causes of poverty, one of the most notable causes being poor access to land and land tenure insecurity. These two feature as one of the major ingredients of low agricultural productivity among smallholder farmers. The problems of land in Malawi revolve around issues of access, land tenure security and land use. Due to poor access to agricultural land, most land constrained smallholder farmers are forced to cultivate on marginal lands, such as steep slopes, river banks, protected areas etc thereby causing soil erosion and land degradation.

Although Malawi is mainly an agrarian economy and land is probably the most important basic factor of production, more than 80% of the core poor own less than 0.5 ha. which is by no means adequate to achieve food security and sustain a decent livelihood given the current level of technology.

To address this problem, the Government of Malawi has taken bold steps to undertake land reforms that will lead to increased agricultural productivity in line with the aspirations of the Malawi Growth and Development Strategy (MDGS). In this regard Government adopted a National Land Policy in 2002 whose goal is to ensure land tenure security, equitable access to land and reduced land degradation. The policy aims at facilitating the attainment of broad based, sustainable and harmonious socio-economic development through optimum and ecologically balanced use of land and land based resources in the country.

Within the context of Malawi Growth and Development Strategy (MGDS) the Land Policy, among other things, advocates interventions which aim at providing land to the land constrained households, promoting productivity on small land holdings, promoting low cost conservation technologies, integrating gender and HIV/AIDS into land management and ensuring sustainable environmental and natural resource management.

2.HISTORICAL BACKGROUND

Existing land distribution in Malawi results from factors such as colonial land policy, resource distribution policies of the one-party era and population dynamics. Yet, as in most countries in southern and eastern Africa, much of the existing land policies, till recently, have their roots in the colonial era. Colonial land policy in Malawi ceded all lands to the British crown. Crown lands were then selectively allocated as private fiefs to white settlers. By granting all non-privatized land to the British crown, the colonial apparatus divested land ownership rights from African communities, who operated under a common property regime. Native land rights, then, devolved to mere ‘occupational rights’ (The Malawi National Land Policy (MNLP), 2002).

Until independence in 1964, land rights in Malawi were governed by the 1902 Nyassaland Order in Council, which enshrined English Property Law as the only framework for land adjudication on the colony. The 1951 Land Ordinance, which divided land into public, private and customary was consistent with English norms to the extent that customary land was designated as a form of public land and so owned by the Crown. This legal interpretation subjugated non-private land owners in African areas to ‘occupying tenants’ on their own lands.

Unfortunately, the post independenceLand Act (1965) left much of the colonial dispensation in tact. Not till 1967 was there a serious attempt to rectify colonial land alienation through two statutes: the Registered Land Act and the Customary Land Development Act. Unfortunately both provisions were implemented only partially (MNLA, 2002). Without a proper land policy complemented by and based on proper implementation of the statutes, land management in Malawi became tenuous. In fact the Land Act was seen to be redundant by many policy makers who viewed as unrepresentative of the ‘…practical realities of Malawi’s land management problems and opportunities’ (MNLA, 2002:9).

3.AN OVERVIEW OF PROBLEMS IN THE LAND SECTOR IN MALAWI

The problems associated with land in Malawi are many and varied and are, in many ways, a symptom of a much deeper social discontent and economic hardship. Specific problems arising from the simultaneous operation of customary land tenure and private ownership regimes create institutional obstacles with cross-cutting effects. In the absence of a comprehensive land policy the avenues of expression are limited; and ad hoc policy interventions by the Government have tended to be reactive, short-term and ineffective. Without being exhaustive, some of the main land problems prevalent in Malawi are as follows:

3.1Residual effects of colonial land policy

Just like other Southern Africa countries, Malawi inherited a rural settlement structure in which white farmers held some of the most fertile and well-watered lands. The effect of the concentration of freeholds in districts settled by the white farmers in the Southern Region and subsequent expansion of estate agriculture after independence is a relatively skewed distribution of freeholds in Malawi. As a result there is an urgent need to strategize to relieve land pressure in the severely affected parts of the country.

3.2High Population-land ratio

According to the National Statistics Office (NSO) the country’s population, estimated at 9.8 Million in 1998, has been growing at about 1.9 percent per annum with an average population density of approximately 105 persons/km2. However, this population is not evenly distributed throughout the country where the Southern Region has the highest while the Northern Region has the lowest density. The Southern Region is urgently in need of population relief and land redistribution solutions.

3.3Land scarcity in spite of idle land

On the basis of estimates made in 1994, 2.6 million hectares of suitable agricultural land remains uncultivated in the rural areas. This means that approximately 28 percent of the country’s total land area is lying idle. Similarly, speculative holding of urban plots and lack of infrastructure causes artificial shortages of urban development land.

3.3Provocative squatting

Squatting in gazetted forests, national parks, on private land and other protected areas in land-pressure districts has become frequent and sometimes violent. This is done to “force” government and other land owners to yield to pressure even if it is against their will.

3.4Worsening land pressure

Land pressure has substantially increased land tenure insecurity and uncertainty despite attempts by communities to consolidate access rights both physically and legally. The difficulties created by land pressure and tenure insecurity manifest themselves through increased land degradation particularly in customary land areas.

3.5Privatising access to customary land

There is increasing evidence that, as the economy becomes more commercialised and less dependent on subsistence agriculture, access rights defined by customary rules are also becoming more private and restrictive than before. In the absence of clear and transparent policy, it is difficult for most citizens to understand the evolving rules of access to land and security of existing customary land rights.

3.6Mismanagement of land

The evidence of under utilization of land, obstruction of watercourses, illegal development, and unplanned or unregulated buildings in urban settlements indicate a failure of development controls. These are occurring in the context of all land tenure categories and land uses in Malawi.

3.7Cross boarder encroachment

Evidence of encroachment by nationals of neighbouring countries into Malawi can be attributed to the fact that many border communities share linguistic and blood ties with one another and hence claim reciprocal rights of access to land and their kinsman. Thus the existence of “international” boundaries and territoriality is often ignored.

3.8Encroachment onto conservation and protected areas

The fact that the creation of some National Parks and protected areas involved the displacement of entire villages, some of which were forced to move into valleys and uncultivable areas remains a source of grievance making some parks and protected areas vulnerable to encroachment. This has been compounded by the fact that communities were not getting a share of the benefits from such facilities.

3.9Uncontrolled allocation of lakeshore land

Particularly prone to illegal development is the lakeshore, which has from time immemorial been under the jurisdiction of Traditional Authorities. In the recent rush by individuals and corporations to erect private leisure cottages and hotels, planning and development problems have gone unchecked.

4.0THE NATIONAL LAND POLICY

4.1 The Evolution of the Land Policy in Malawi

The first serious attempt to provide a comprehensive land policy and law was made in 1967 with the passage of the Registered Land Act (Cap. 58:01) and the Customary Land (Development) Act (Cap. 59:01). However, the limited application of both Acts to Lilongwe West, which was an area of piloting, and failure to extend to the entire country, made the effort to secure customary rights by the enactment of the Registered Land Act an incomplete experiment. Therefore, because of the previous policy failures, there was need to enact a basic land law that would apply to all land, irrespective of tenure.

Failure to deal with the land policy concerns from the 1960s and 1970s is believed to have contributed to current problems of poverty, food insecurity and persistent inequities in access to arable land. In the absence of clear policy direction there has been heightened tenure insecurity, encroachments, deforestation and cultivation on marginal land, thereby accelerating environmental degradation.

4.2Rationale for a NationalLand Policy

The Government of Malawi has operated without a comprehensive land policy since independence. The 1965 Land Act and other related Acts, currently in vogue, no longer reflect the practical realities of Malawi’s land management problems and opportunities. As a result the land administration environment in Malawi has been characterized by weak planning, poor coordination, absence of proactive policy interventions and limited capacity for effective monitoring of land administration and management. This prompted Government of Malawi to develop a comprehensive national land policy that would survive the test of time in a new political dispensation.

4.3NationalLand Policy Development Process

The process leading to the formulation of the National Land Policy was consultative. First, the Government instituted a Presidential Commission of Inquiry on Land in 1996 which was mandated to undertake a broad review of land problems in the country. The Commission recommended the main principles for formulating a comprehensive land policy that will foster a more economically efficient, environmentally sustainable and socially equitable land administration and management. In addition, studies on customary, estate and public land utilisation were conducted. These studies, among other things, observed that:

  • Most of Malawi's arable land of both leasehold and customary tenure is eitherunder-utilised, unregistered, or legally not recognised.
  • The land sector impacts on poverty in three main ways: inequitable access to productive resources and processes, unequal land distribution, and land tenure insecurity.
  • Secure rights to land underpin the sustainability of livelihoods, particularly among rural farmers, by providing a secure basis on which to plan and invest for the future, and even the opportunity to consider broad livelihood options including urban migration. These rights are critical to the achievement of the Malawi Growth and Development Strategy objectives.
  • The land sector is an important part of the framework for environmental and natural resource management. This includes ownership and management of reserved land, the management of common property, individual land use, and the planning as well as development of rural and urban areas.
  • Specific land pressure concerns vary widely around the country, between regions, between districts, between communities and between individuals. The Southern Region has the most severe land pressure problem

4.3Policy Policy Goals and Objectives

4.3.1Policy Goal

The goal of the National Land Policy is to ensure tenure security and equitable access to land, and to facilitate the attainment of broad based social and economic development through optimum and ecologically balanced use of land and land based resources.

4.3.2Policy Objectives

The objectives of the National Land Policy are to:

  • promote tenure reforms that guarantee security and instill confidence and fairness in all land transactions (reduces gender and other biases and facilitate market transactions);
  • to promote decentralized and transparent land administration (ensure accountability and establish the legal framework that will limit the two extremes of resource monopolization or fragmentation);
  • to extend land use planning strategies to all urban and rural areas (ensuring effective land use and maximizing land resources within the market structure);
  • to establish a modern land registration system for delivering land services to all (by formalizing a land registration system);
  • to enhance conservation and community management for local resources (by promoting community participation in resource stewardship); and
  • to promote research and capacity building in land surveying and land management (by training extension service personnel who can disseminate land management knowledge to key stakeholders).

4.3.3Policy Recommendations

The Malawi National Land Policy epitomizes the Government’s desire to address the constraints to Malawi’s social and economic development recommends the following:

  • Recognition of three Categories of land tenure- Customary land, Public and Privateland Promotion of equitable access to land and security of tenure
  • Regulated land access by non-citizens
  • Extension of land use planning and registration to the entire country
  • Promotion of democratic and transparent land administration and dispute settlement
  • Recognition of cross-cutting and inter-sectoral issues such as gender, environment and HIV/AIDS

5.0LAND REFORMS AS VEHICLE FOR SUSTAINABLE ECONOMIC

GROWTH AND POVERTY REDUCTION

The Malawi Growth and Development Strategy links land issues with land productivity concerns and poverty, driven by inadequate land access, inability to use land effectively, poor quality land, and environmental degradation. In other areas, especially in the Southern part of the country land shortage is a major contributing factor to poverty which leads to land degradation. However, in other parts of the country, especially in the North, land holdings do not differentiate poor and non-poor peasants, rather, the constraint is capacity and the means to achieve adequate levels of productivity.

Government of Malawi is convinced that since land scarcity, whether actual or perceived, can have serious implications for land tenure and land relations, the underlying causes and consequences of tenure insecurity is being addressed by strategies that provide access and security of tenure to citizens with the ability and resources to make productive and environmentally sustainable investment in land. Related to that, and in view of the steadily increasing pressure on land, the policy is being implemented to ensure security of tenure, peaceful co-existence, growth-oriented investments, and planned utilization of land.

Further Government, through community-based land acquisition, re-distribution and development programmes, is reducing the growing land pressure in areas prone to conflicts. Respect for the law and protection of the integrity of accrued property rights is important for establishing a stable land tenure system. The constitutional protection of private property rights and due process of law will be applied to protect investments and factors of production related to land.

5.1Implementation Strategy and Vision for Malawi’s Land Reform

The framework for achieving the goals of the National Land Policy are contained in the MalawiLand Reform Programme Implementation Strategy (MLRPIS). The aspirations of this strategy are outlined as: tenure security, access to land, land governance and administration, sustainable land use, capacity building and training, information, education and communication.

5.1.1Tenure Security

Customary land in Malawi does not have secure tenure at present, and the cost of acquiring formal tenure is very high, particularly to the rural people. In addition, urban squatter settlements require recognition, considering the fact that they cannot be eliminated. The Implementation Strategy encourages land legislation with provisions that enshrine tenure security, especially for the vulnerable groups in society. This will not only enhance tenure security, but also build confidence and encourage investment on land.

Proposed activities under this result area include creating public awareness about the National Land Policy and its implications on people’s livelihoods; drafting and adopting a legal framework for implementing the Land Policy that will recognise land as any other property which can be owned and disposed of; surveying, registration and titling of customary land; provision of serviced plots in urban areas; formalizing the rights of urban squatters; reviewing and rationalizing costs of surveying and registration; reviewing surveying and building standards; encouraging people to prepare wills and also educating them on the contents of the Wills and Inheritance Act.