Land Administration in Zambia: The Need For An Effective Customary Land Administration.

THE ZAMBIAN OPEN UNIVERSITY
SCHOOL OF LAW

LEGAL RESEARCH LL32

LAND ADMINISTRATION IN ZAMBIA: THE
NEED FOR AN EFFECTIVE CUSTOMARY
LAND ADMINISTRATION.

KELVIN MWICHE
STUDENT No. 21010135
December 2013

Legal research paper submitted in partial fulfilment for the degree of
Bachelor of Laws
i

DECLARATION
I Kelvin Mwiche, Computer number 21010135 do HEREBY DECLARE that the
contents of this legal research paper are entirely based on my findings, that I have not in
any respect used any persons work without acknowledging the same to be so. I therefore
bear the absolute responsibility for the errors, defects and omissions therein.

Date.. Sign
ii

RECOMMENDATION
I recommend that the legal research essay prepared under my supervision by
KELVIN MWICHE

Entitled;
LAND ADMINISTRATION IN ZAMBIA:
The Need for an Effective Customary Land Administration

be accepted for examination. I have checked it carefully and Iam satisfied that it fulfils
the requirements pertaining to format as laid down in the regulations governing legal
research.

________________________________________________
Supervisor

Dated the.day of.2013
iii

ACKNOWLEDGEMENTS
I would like to thank the people and institutions that gave support to this study. First I
would like to extend my gratitude to Mr Zulu librarian at the University of Zambia who
gave me total cooperation during my research work at the University of Zambia library.
My sincere thanks are extended to Mr Frightone Sichone under whose supervision this
study was undertaken. In particular I would like to thank Mr Nyuma K. Ngmbi Legal
Counsel at Chambishi Metals Plc and Mr Chrispin Tembo for their encouragement and
comments.
Lastly, am grateful to my wife and children for the support rendered during my entire
period of study. I dedicate this legal research paper to my dear late dad and mom Abel
Kampamba Mwiche and Foster Musonda Mwiche.

iv

TABLE OF CONTENTS
Declaration ......................................................................................................... i
Recommendation ................................................................................................ ii
Acknowledgements ............................................................................................ iii
Table of contents ................................................................................................ iv
Table of statutes ................................................................................................. vi
Table of cases ..................................................................................................... vii
Abstract .............................................................................................................. viii

CHAPTER 1
HISTORICAL DEVELOPMENT OF LAND ADMINISTRATION
1.1 Introduction .................................................................................................. 1
1.2 Historical development ................................................................................ 1
1.3 Reserve land administration ......................................................................... 3
1.4 Post-independence land reforms .................................................................. 3
1.5 Third Republic land reforms ........................................................................ 5
1.6 Background of customary land .................................................................... 7
1.7 Land ownership under customary Tenure .................................................... 9

CHAPTER 2:
LEGAL FRAMEWORK UNDER CUSTOMARY TENURE
2.1. Introduction ................................................................................................. 11
2.2. Procedure for converting Customary Tenure into leasehold Tenure .......... 11
2.3. The Lands Act ............................................................................................. 12
2.4. Circular No. 1 of 1985 ................................................................................ 14
2.5. Effects of tenure conversion ....................................................................... 16
2.6. The Lands Tribunal Act .............................................................................. 18
2.7. Occupation of vacant land ........................................................................... 20

CHAPTER 3
INSTITUTIONAL FRAMEWORK UNDER CUSTOMARY TENURE
3.1. Introduction ................................................................................................. 21
3.2. Institute of Chiefs ........................................................................................ 23
3.3. Local authorities .......................................................................................... 26
3.4. Ministry of Lands ........................................................................................ 28

v

CHAPTER 4
ANALYSIS OF HOW CUSTOMARY LAND IS ADMINISTERED
4.1. Introduction ........................................................................................... 31
4.2. Defects in the legal framework ............................................................. 32
4.3. Defects in the institutional framework .................................................. 36
4.3.1 Chiefs ........................................................................................... 36
4.3.2 Local Authorities ......................................................................... 37
4.3.3 Ministry of Lands ......................................................................... 37
4.4. The need for an effective customary land administration in Zambia ... 38

CHAPTER 5
CONCLUSIONS AND RECOMMENDATIONS
5.1. Conclusions ........................................................................................... 41
5.2. Recommendations ................................................................................. 47
Bibliography ......................................................................................... 51

vi

TABLE OF STATUTES
Land Acquisition Act Chapter 189 of the Laws of Zambia
Land (Conversion of titles) Act 1975
Land (Conversion of titles) (Amendment) Act No. 2 of 1985
Lands Act of 1995 Chapter 189 of the Laws of Zambia
Administrative Circular No. 1, of 1985
The Zambia (State Lands and Reserves) Orders, 1928 to 1964
The Zambia (Trust Land) Orders, 1947 to 1964;
Constitution of Zambia, Chapter 1 of the Laws of Zambia
Statutory Instrument No. 7 of 1964
Gazette Notice No. 1345 of 1975, as amended

vii

TABLE OF CASES
Makwati Vs Nkomeshya LAT/60/1997
Mwangela and Nsokoshi v Ndola City Council (2000) Z.R. 131
Robert Chimambo, Rhidah Mungomba and Adam Pope v. Commissioner of Lands,
Safari International Zambia Limited, Environment Council of Zambia and Fingus
Limited(2008) Z.R. 1
Sobhuza v. Miller and Others [1926] AC 516
Still Water Farms Limited v Mpongwe District Council, Commissioner of Lands,
Dawson Lupunga and Bautis Kapulu LAT/30/2000
Village headman Mupwaya and another v Mbaimbai Supreme Court of Zambia Appeal
No. 41 of 1999
Yengwe Farms Limited v Masstock Zambia limited the Commissioner of Lands and the
Attorney General (1999) Z.R. 65

viii

ABSTRACT
Zambia has a dual land tenure system consisting of customary tenure and leasehold
tenure. In the customary system the chiefs regulate the allocation of land. This system is
considered insecure according to western standards but works for the indigenous people.
In other words, it is this customary tenure that existed before the white settlers
introduced the English land tenure. It is in this light that the study will critically look at
the effectiveness of customary land administration in Zambia. Since access to land is a
fundamental human right for all Zambians, it is necessary that land administration and
management must be guided by transparency and accountability. It is submitted that
without an effective customary land administration, encroachment and corruption will
be the order of the day in the alienation of land.
The study urges first, the historic development of customary land tenure in Zambia. It is
inescapable that this paper gives an evaluation of the path the land administration
system has navigated starting with the colonial administration through the post-
independence land tenure reforms and legislations. This will establish the genesis of the
present day customary land administration. Furthermore, the study reveals that the
administration of customary land is hampered by the inadequacy of laws and guidelines
in the way the administration is conducted. On the other hand, the legislations that are
provided for land under customary land are not clear. This has rendered the
administration of land under customary land to be inefficient and ineffective. The study
further reveals the lack of coordination among the institutions that govern the
administration of land under customary land. This has to some extent been created by
the conflicting laws and regulations that have been put in place. It is submitted that the
laws and regulation should be clear in order to maintain an effective administration
under customary tenure.
The study will further delve on the legal and institutional framework in relation to the
administration of customary land in Zambia. There are several statutes, circulars and
notices with regard to the alienation of land under customary tenure. However, there are
no specific rules and guidelines attached to each institution highlighting the role that
they should play in the administration of customary land. This has brought about
inconsistency among the statutes that are enacted to carry out the administration of
customary land. This is the major challenge that the administration of customary land is
faced with. It is therefore in the light of this that the study suggests revision of the laws
ix

and to some extent the regulations on customary tenure so that existing customary land
reforms can be enhanced.
Additionally, the study will proved a critical analysis on how the customary land is
administered with the current legal and institution framework. The study concludes that
the inefficiencies that exist in the administration of customary land in Zambia are
mainly to lack of specific laws to carter for the customary tenure. Furthermore, it is
suggested that the specific laws on the administration of customary land be enacted and
the institutions involved in the alienation of land be restructured and decentralised in
order for them to deliver land in an effective manner for the benefit of all Zambians.
The study recommends the establishment of rural management boards that would deal
with the alienation and administration of customary land in Zambia.

1

CHAPTER 1
HISTORICAL DEVELOPMENT OF LAND ADMINISTRATION
1.1 Introduction
Land is the only natural resource hosting all human activities, thus there is a strong
demand to gain access. In the light of this, transparent land administration could
increase equitable access to land and its natural resources which is an important factor
to help reduce poverty and contribute to economic growth. Land administration can be
therefore be defined as a process of determining, recording and disseminating
information about ownership, value and use of land.
The fundamental principle of land administration is to enable an effective management
and use of land resources in a sustainable way. Moreover, an effective and transparent
land administration is not only vital to the success of land and agrarian reform, but it
can also help to meet the aspirations of the National Development Goals and the
Millennium Development Goals. These developmental agendas aim to create a
legitimate, democratic and effective system characterised by transparent institutions. It
therefore follows that, abuse of discretion by public officers who deliberately ignore to
follow guidelines and procedures, may constitute corrupt practices.
1.2 Historical development
Before the coming of the colonial government, the indigenous people of Zambia
owned land as tribal groups. As individuals, they also had pieces of land which they
owned with the permission from the local leaders who happened to be chiefs. In this
regard, permission was sort from the chief for a piece of land to be granted. There was
no exchange of money involved and as such pre-colonial societies in Zambia
considered land as a free commodity
1
. However, the coming of the white settlers into
the country looked at this way of life as something different and therefore introduced a
leasehold tenure. Ideally this was basically meant to separate the locals from the white
settlers. The merging of Western Rhodesia and Eastern Rhodesia in 1911 formed the
country of Northern Rhodesia
2
. It was at this point that the land policy made a new
twist in that the King of the United Kingdom gave authority to the British South

1
Hansungule, M., Feeney, P. and Palmer, R. (1998) Report on land tenure insecurity on the
Zambian Copperbelt, Oxfam GB, Oxford.
2
Northern Rhodesia is now the present day Zambia.
2

African (BSA) Company to govern the territory and all matter concerning land
issues
3
.In the colonial era land was categorised as native reserves and trust land.
However, the 1928 Northern Rhodesia Order in Council formally established areas of
crown land to be reserved for white settlement under English Land Law and reserve
areas for African occupation under customary tenure arrangements. This was done in
view of providing the natives with sufficient land and enables them to develop a full
native life. Apart from that this move enabled government to release for Europeans
other areas suitable for settlement
4
.
Crown Land was described as potentially or actually available land for European
settlement on an economical basis and for mining development
5
. It is actually
submitted that the British system of indirect rule assumed that the African land tenure
were characterised by communal and not individual rights to land. This could have
been the main reason there never existed the right of occupancy as was the case in the
crown land. It is for this particular reason that the colonial government granted chiefs
a great deal of control over the use and allocation of land and natural resources within
the tribal settings.
The native trust land was later created in 1947 for the occupation of indigenous people
as well as white settlers under certain restrictions
6
. For instance, a colonial policy to
safeguard and guarantee land rights as rights of occupancy, for a period of 99 years
existed and was applied to this category of land using British laws. The only
difference that existed between the reserves and the native trust land was that the
alienable interest granted to the white settlers could not exceed a period of five years.
This policy applied to white settlers contending for fertile reserve lands, but on shorter
tenure terms, if it was considered to be in the interest of the local people. On the other
hand, Crown lands were held in perpetuity as freehold lands. All lands in Zambia were
administered under such policies and English laws until independence in 1964.

3
The BSA governed the country from 1911 up to 1924 when the British Colonial Authority.
4
Legislative Council for debates, 25th November, 1930, p. 105
5
Palmer, R. (1973). Land in Zambia. In Palmer, R. (ed.), Zambian land and labour studies.
National Archives Occasional Paper No. 2 Lusaka: National Archives of Zambia: 56-66.
6
This was done through the Northern Rhodesia (Crown lands and Trust lands) order in council
3

1.3 Reserve land administration
The administration of Reserve Land was governed by the Zambia (State Land and
Reserves) Orders, 1928 to 1964. Under these orders, the land in the reserves was set
apart for the sole and exclusive use of the indigenous people of Zambia. This
provision was intended to protect the villagers and their customary rights to land
7
. The
president could make grants or dispositions of land to Zambians and rural councils for
periods of up to 99 years. In the case of non-natives, terms were limited to 99 years for
public purposes, 33 years for missionary societies and charitable bodies, and 5 years in
any other case
8
. The president was in all cases to be consulting the rural council before
making any grant. The lessee could not, without written consent of the president,
assign or sublet the leased land or appoint any person other than a native approved by
the assistant district secretary to be in charge of the land.
Also, according to the Reserve Grant Regulations, a lease could not be disposed of by
will except if law permits, that its disposal by intestacy should be governed by a law
passed by parliament, and that the land granted could not be subdivided without the
consent of the president unless a law permits. However, no such laws existed in any of
the three cases. The nature of rights and interests that could be acquired in reserves
was nowhere explicitly stated, although from the powers of the governor it was
implied that what was intended is customary tenure.
1.4 Post-independence land reforms
However, it must be noted that the attainment of independence did not make any
changes to the land categories at all. Nonetheless, there was a change of names from
crown land to state land and land vested in the President rather that the British
sovereign. This simply indicated that the powers of land alienation in native trust land
that was previously exercised by the governor were conferred upon the president.
Conversely, the distinction between the state land and the trust and reserves was
maintained. That is to say that the administration of land in Zambia continued to be
done in the same way as it was in the pre-independence era at least for a time being.

7
This is according to the Ministerial Statement in Parliament (4th August 1987) on Land
Alienation in Reserves and Trust Lands
8
section 6a.1 of the Zambia (State Land and Reserves) Orders, 1928
4

As earlier alluded to, the land policy that the colonial government left was perceived
to have some form of inequalities and there were calls to have the land policy
reviewed. Some of the problems were actually created within the crown land (now
state land
9
.) it was against this background that the government decided to undertake
policies and legal reforms in the system of land administration.
In order to address the inadequacies of the previous land policy government appointed
the Johnson lands commission which was mandated to examine inter alia all aspects
of land policy and administration which were inherited on independence. The Johnson
lands commission recommended the revocation of the orders in council by legislation
and be replaced with the land Administration Act. Furthermore, the commission
recommended among other things that the customary land be brought under the
provisions of the Lands Administration Act relating to the acquisition of land rights as
soon a reasonably practical.
However, these recommendations were not adopted as government felt that they were
not in line with the socialist principles which put man at the centre of development.
Thereafter, the government implemented the changes in the land policy which
categorically vested all land in the president. The policies further provided for the
conversion of all land under freehold to leasehold tenure for the duration of one
hundred years. However, the land under customary tenure was to remain as such
without being converted to leasehold these land policies were further aimed at
improving the use of agriculture land
10
. These reforms were subsequently followed by
the enactment of the Land (Conversion of Titles) Act of 1975. The provisions of this
Act among other things prohibited the sale of vacant or bare land. Furthermore, the
President delegated his power in land administration to the Commissioner of Lands
11
.
Further indications of the improvement on land reforms in the country were
manifested the issuance of Circular No. 1 of 1985 which made the district councils to
be responsible for land alienation on behalf of the commissioner of Lands. It is

9
Most white settlers retained back to Britain after independence thereby leave their land
vacant. There was a concern that the government should grab these pieces of land left by
absentee land lord.
10
First National Development Plan of 1968, government printers, Lusaka
11
Gazette Notice No. 1345 of 1975
5

submitted that despite all these land reforms the customary land administration
remained the same and the chiefs continued to play their role as regulators. Even
though Zambia has undergone through a number of land reforms, it must be
appreciated that these reforms cannot be carried out overnight. It is a gradual process
which requires time and perseverance. Furthermore, when land policies are formulated
new paradigms to deal with are created for a smooth delivery system to ensue.
1.5 Third Republic Land reforms
Zambia returned to a multiparty democracy in 1991 when the MMD government came
into power with of course different ideologies from that of the previous government.
Some of these ideologies were to repeal the Land (Conversion of Titles) of 1975 and
put up changes to the land administration system. In was for this reason that the law
governing the land alienation was revisited. The land reforms initiated by the MMD
government aimed at strengthening the property rights of titleholders on state land.
These land reforms were not only designed to improve on the aspect of land
administration in the country but also tackled the issue of land development. It was
necessary at this stage that most land in rural areas is opened up for development. This
meant that the land designated as customary land had to be converted to statutory land.
This change was embodied in the Lands Act of 1995
12
, which abolished the various
categories of land and replaced them with only two: state land, and customary land.
State land, as defined by the Act, is that and which is not situated in customary area
13
.
It is governed by English law and is said to cover about 6 per cent of the total land
area in Zambia. It consists of land mainly in urban areas along the line of rail, and is
rich in nutrients and mineral deposits, and was tsetse fly free during colonial times.
Customary land, on the other hand, is held under the customs and traditions governing
land use and ownership. It is provided that no title, other than a right to use and
occupy land under customary tenure shall be valid unless it is approved by the chief
and the local authorities and a lease is given by the president
14
.

12
Chapter 184 of the Laws of Zambia
13
Section 2 Ibid
14
Section 8(3) Ibid
6

Some of the strengths of the Act include the limitation of the Presidents power to
alienate customary land, and the conversion of customary land tenure to leasehold
tenure
15
. In doing so the governments aim was to diminish the amount of land held
under communal tenure and open up more land for investment. Whereas previously no
one could acquire title deeds (except under special provisions) in customary areas,
today anyone can obtain a title deed in such areas provided they follow stipulated
procedures. The extension of the powers of the Commissioner of Lands is to ensure a
standard system of land tenure system in order to eliminate discriminatory systems of
land holdings. Section 8(1) of the Act also establishes the Lands Development Fund to
allow council authorities to improve land for allocation to land seekers.
It is submitted that the 1995 Lands Act made significant land reforms in the country
and established the current two land tenure systems that are in the country. This was
done by amalgamation of Reserve and Trust land to one type of land to be known as
customary land. As the law on land policy stands now, customary tenure is legally
recognised by government and will continue to be customary land and no other law
can limit a citizens right to hold land under the customary setup
16
. However, it can
easily be converted to leasehold tenure
17
. It is in this regard that in order to strengthen
the administration of customary land the law recognises the role of chiefs as regulators
of land held under customary tenure
18
. Although there was a significant distinction
between the reserves and trust lands, for practical purposes the distinction does not
exist because these two categories have been grouped as one. The chiefs alienate land
to villagers for their personal use and occupation. The land is regulated by customary
laws which differ from one community to the other.
The Lands Act has also established the Lands Tribunal for settlement of land disputes
that would arise. It must however be stated that the main objective of establishing the
Tribunal was to give the public a fast-track method of resolving land disputes that is
efficient and cost-effective compared to the established judicial or court system. It is a
circuit court and can sit at any place in Zambia where there is a dispute. Nevertheless,

15
Section 8(2) Ibid
16
Section 7(1) of The Lands Act Chapter 184 of the Laws of Zambia
17
supra
18
Ibid
7

the lands tribunal is restricted to land under the Lands Act 1995. In other words the
Tribunal does not have jurisdiction to handle disputes on customary land.
Furthermore, it is observed that the land reforms in the third Republic were basically
market based and therefore put up value on land. It must be realised that prior to the
commencement of the third Republic in 1991, land in Zambia could not be bought or
sold like a commodity. The new government proposed through its land bill to privatize
land and develop land markets. Even though stakeholders rejected the bill government
quietly proceeded to make the bill law
19
. This is the current Lands Act 1995. However
the main reason of enacting the Lands Act was to encourage development in rural
areas through the recognition of customary land tenure. Conversely there is need that
the customary land policy is also codified so that governing laws and procedures can
be made available to the stakeholders.
1.6 Background of customary tenure
In the pre-colonial days, there existed only one form of land that was controlled by the
traditional rulers. The introduction of the English tenure in the colonial days
established different categories of land. Crown land as aforesaid was controlled by the
government and the Native Reserves was left to be controlled by the chiefs without
any changes to the existing traditional ways. This indicates that the present day
customary land has been in existence since time immemorial but was known by other
names. However, the present day customary land is the creation of the Lands Act
1995 and constitutes all land that was previously or before the commencement of the
Lands Act referred to as Reserve land and Trust land.
However, the administration of this particular category of land remains in the same
way it was right from the colonial era with minor changes. Nevertheless, customary
land is basically the land that is found in the rural parts of the country. It is sometimes
referred to as traditional land. The laws governing the granting of customary land in
practical terms continued to be interpreted in the light of the Orders of the colonial

19
Hansungule, M. (2001). The Lands Act 1995: An obstacle or Instrument of Development.
Paper prepared for the Zambia Land Alliance
8

government
20
. Traditional authorities were recognized and that authority was exercised
in the person of the traditional ruler. It is therefore submitted that customary land
tenure is recognised in the country and this has been confirmed codification expressed
by the laws governing land in the country
21
.
Customary lands may be indirectly held, but the allocation and use of these lands are
administered by chiefs and headmen on behalf of tribal communities
22
. On
customary land, titles do not exist, land taxes are not paid, and transfer and use are
governed by customary law. The vast majority of land in Zambia (ninety-four per
cent) is classified as customary
23
. Just like state land customary land tenure is also
vested absolutely in the president who holds it in perpetuity for and on behalf of the
people of Zambia
24
. It must be realised that, even though the colonial government
provided for the conversion of customary tenure to leasehold it did not carry much
weight simply because there was no demand for it.
The Ministry of Lands Administrative Circular No. 1, of 1985
25
which sets out the
procedure by which customary land could be alienated to a private person or body, has
also played a significant role in the administration of customary land in Zambia. The
Lands Act 1995 has codified the procedure therein and therefore it so stands that the
chiefs approval shall be followed by a resolution of the District Council, and finally
approval by the Commissioner of Lands for the conversion of tenure from customary
to leasehold tenure. Although the traditional rulers and traditional systems are
recognised in Zambia, there exists a limit in their role as regulators of customary land.
For instance, when the an investor acquires a piece of customary land, the chiefs

20
Until repealed by the Lands Act 1995, the Zambia (State Land and Reserves) Orders 1928
to 1964 governed the administration of Reserve Land. Under these orders, the land was set
apart for the sole and exclusive use of the indigenous peoples of Zambia, although the
President could make grants of land to Zambians and rural councils for periods up to 99
years. Under the Zambia (Trust Land) Orders 1947 to 1964, which was also repealed by the
Lands Act of 1995, the President could grant a right of occupancy of up to 99 years to a non-
Zambian and demand rent for the use of the land.
21
Supra
22
Supra
23
It must be noted however that, these statistics are based on an old evaluation and there is
need to come up with new statistics. This is due to the simple reason that a good area under
customary tenure has been converted to leasehold tenure.
24
Section 3(1) of the Lands Act, Chapter 184 of the Laws of Zambia
25
The circular is a set of instructions addressed to all provincial permanent secretaries and
district executive secretaries. It includes the forms to be used in applying for land
9

formal involvement ends at approving that particular land can be converted to
leasehold.
However, the chief has no authority to sign the conveyance as one of the parties to the
contract. The lease contract is only signed between the Commissioner of Lands (on
behalf of the President) as a leasor and the investor as the leasee. In order to provide
checks and balances in the process the chiefs recommendations are followed by the
District Councils corrective resolution. In turn the lands commissioner checks both
the chief and the District Council. However, there are some lapses that occur in the
process due to the fact that sometimes documents may take long in either the District
Councils offices or in the Commissioner of lands offices. This creates a loophole for
corruption as the investor needs things to move fast because he is in a hurry to develop
the land. It is indeed submitted that for an effective customary land administration to
be put in place, a well-articulated procedure should be codified in the either separately
or within the Lands Act itself.
1.7 Land ownership under customary Tenure
Land ownership under customary tenure in Zambia mainly vary from community to
community and this is largely accounted for by the unique historical development of
political groupings and the consequent variation of legal and institutional structures in
different polities
26
. Customary land in Zambia is mostly land that is in the rural parts
of the country and partly in peri urban areas
27
. The most significant feature of this
category of land is that no single person can claim to own land as a whole. This is
partly because most African societies believe that land is a communal property. This
was illustrated in the case of Sobhuza v. Miller and others
28
were Viscount Haldane
stated inter alia that, the notion of individual land ownership is foreign to the native
ideas. Nevertheless, this is contrary to what is obtaining on the ground because an
individual can be found to own a large portion of land under customary tenure as long
as he has consent from the local chief.

26
Kwamena Bentsi-Enchill, Do African systems of Land Tenure Require a Special
Terminology?, 1965, in Journal of African Law, Vol. 9, No. 2 p. 115
27
Customary area is defined as the areas described in the Schedules to the Zambia (State
Lands and Reserves) Orders, 1928 to 1964 and the Zambia (Trust Land) Orders, 1947 to
1964;
28
[1926] AC 516
10

On the other hand, this is somehow different from what used to happen in the pre-
colonial era because people would just clear a piece of land that has never been
occupied and establish ownership. However this may be difficult to achieve today as
Sichone observes-
..this observation may not be tenable at the present day because so many factors
such as population growth, economic, social and political factors have changed with
time, and mere clearing and occupation of land does not in itself confer ownership
29
.
However, ownership of customary land attracts no registration of title because of the
African belief that individual ownership of title is foreign. It actually submitted that
the acquisition and occupation of customary differs from one tribal group to another.
For instance, White observes that;
the Tonga people of the southern province of Zambia had no traditional
authorities to allocate land and the headmans only participation in the
acquisition of land is to provide information on whether or not existing rights
are enjoyed by an individual in a piece of land which another wishes to
acquire
30
.

However, in most parts of Zambia chiefs and headmen play an important role of
ensuring that land under customary tenure is administered for the benefit of the
subjects. In the same vain, even the Tonga chiefs have now acquired the same role in
the administration of customary because it is now a legal requirement that the
conversion of rights from a customary tenure to a leasehold tenure shall have effect
only after the approval of the chief and the local authorities in whose area the land to
be converted is situated
31

This chapter has delved on the historical development of land administration in
Zambia and has established the genesis of the present day customary land tenure. The
next chapter is devoted to discussing the legal framework under customary tenure.

29
Sichone F. (2010). The system of land alienation in Zambia: A critical analysis of the legal
and institutional framework at p.141
30
C.M.N White, Terminological confusion in African land Tenure, in Mvuga M. P., Land
law and Policy in Zambia, op. cit p. 117.
31
Section 8(2) of Lands Act, Chapter 184 of the Laws of Zambia

11

CHAPTER 2:
LEGAL FRAMEWORK UNDER CUSTOMARY TENURE
2.1 Introduction
It is clear that all land in Zambia is vested in the president. It therefore follows that the
President has the powers to alienate land in the country. In doing so there is a good
number of pieces of legislation that impact directly or indirectly on the administration
of land. With regard to the administration of customary land, the Lands Act 1995
32

provides for the conversion of land held under customary tenure to leasehold tenure.
33

The procedure for converting customary tenure to leasehold is provided for under a
Statutory Instrument which has now been incorporated under the subsidiary legislation
in the Lands Act.
34
It is however observed that the enactment of the Lands Act 1995
did not make any changes to the land under customary tenure. However, every piece
of land in any customary area is recognised by the government, continues to be so and
no other law can limit a citizens right to hold land under the customary setup
35
. In this
regard, chiefs play a significant law in the allocation of customary land as the first
point of contact.
2.2 Procedure for converting Customary Tenure into leasehold Tenure
The process of acquiring land under customary tenure with view of converting to
leasehold tenure normally starts with the chiefs. A person who has a right to the use
and occupation of the land under customary tenure may apply to the chief of the area
where the land is situated for the conversion of such a holding into a leasehold
tenure.
36
Where the chief refuses consent, the refusal is communicated to the applicant
and the Commissioner of Lands stating the reasons for refusing. In the same vain,
when the application is considered, the chief has got to indicate the period of time that
the applicant has been holding the particular land under customary tenure. Thereafter
the chief should state after consultations with the local people that the applicant is not
infringing on other persons rights. It is at this stage that the site plan prepared and

32
33
Section 8(1) of the Lands Act Chapter 184 of the Laws of Zambia
34
Statutory Instrument No 89 of 1996
35
Supra
36
Ibid regulation 2(a)(b)
12

endorsed by the chief. The next stage is to fill in the form for the conversion of
customary to leasehold tenure upon which the traditional leader writes consent letter to
the Council
37
. In this regard, the council inspects the land, interviews the applicant and
recommend to council meeting. After approval, the council recommends to the
Commissioner of Land seeking allocation approval to ascertain availability. The role
of planning and demarcating of land in the customary area is performed by the
Department of agriculture which verifies the availability of the land being
recommended for conversion by comparing the location maps with the base maps of
the areas concerned. It should be noted however that land demarcated by the
Department of agriculture is subjected to a 14 years lease. When the Commissioner of
Lands approves the plan it is then sent to Surveyor-General for numbering and survey.
Conversely, if the land is surveyed under the Land Survey Act,
38
the commissioner of
Lands can then grant a 99 years lease.
There are however various factors that are taken into consideration by the first the
council and secondly by the Commissioner of Land for the all process of acquiring
land in customary tenure to be accomplished. The most critical one is to verify
whether or not there is a conflict between customary law of the area and the Act
39
.
This indicates that the council can only make recommendations to the Commissioner
of Lands if they are satisfied that there is no conflict at all. Otherwise no approval
would be given. On the other hand, the procedure takes into consideration the interest
of the community before proceeding with the conversion of customary tenure to
leasehold tenure
40
. This indicates that the council has the responsibility to ascertain
any family or communal interests or rights relating to the parcel of land to be
converted.
41

2.3 The Lands Act
The Act provides for the continuation of leaseholds and leasehold tenure; for the
continued vesting of land in the president and alienation of land by the President; for

37
Lands (Customary Tenure) (Conversion) Regulations, Statutory Instrument No. 89 of 1996.
38
39
Lands (Customary Tenure) (Conversion) Regulation 3
40
Ibid regulation 4
41
Ibid
13

the statutory recognition and continuation of customary tenure; and for the conversion
of customary tenure into leasehold.
42
It is submitted that the issues of taking into
consideration the interest of the community is critical in the elimination of land
disputes. It is for this particular reason that it has been integrated in the Lands Act
1995. It follows that in an event where the consultation with the interested or affected
parties as well as traditional chiefs has not been done and then a complaint arises, it
renders the all disposing void at law. This was illustrated in the case of Village
Headman Mupwaya and Singh v Mbaimbai
43
.
The facts of the case were that, the second appellant who was an Indian resident in
Zambia who was introduced to the village headman of Mupwaya village in chief
Mungules area in order for him to get a piece of land to settle on. He was given land
belonging to the respondent who inherited it from his late father. The respondent was
not consulted and therefore took up his complaint to the Lands Tribunal which upheld
his claim. The appellant then appealed to the Supreme Court. It was held by the
supreme court that failure to consult any person whose interest may be affected by the
grant as required under section 3(4) of the Lands Act was fatal. In this particular case
that Supreme Court stated inter alia that the piece of land was held under customary
tenure but the first appellant did not consult the respondent before alienating his land
to the second appellant. It was further held that since the respondent as an interested
person affected by the grant was not consulted, the law was not complied with and the
appeal failed.
In the same vain, the case of Still Water Farms Limited v Mpongwe District Council,
Commissioner of Lands, Dawson Lupunga and Bautis Kapulu
44
put an emphasis on
the legal requirement of consulting interested parties with reference to section 3(4) of
the Lands Act 1995. In this particular case, the appellant company was challenging the
Lands Tribunal in favour of the four respondents which stated inter alia that allocation
of land was null and void for non-adherence to procedure by the chief. The issue to be
determined by the Supreme Court was whether or not the chief was in line with the

42
Mulolwa A. (2002) Integrated Land Delivery; Towards Improving Land Administration in
Zambia DUP
43
SCZ/41/1999
44
LAT/30/2000
14

laid down procedure when he allocated land to the appellant company without
consulting the third and the fourth respondents. The Supreme Court upheld the
Tribunals decision that failure to follow the laid down procedure in land alienation
amounts to the purported allocation being null and void.
Despite not having specific references to the procedure of land alienation in the
customary tenure, the lands Act 1995 has provided for the recognition of customary
tenure
45
. However, the recognition of customary tenure does not bring about the
registration of ownership rights. This recognition is merely meant for the protection of
use and occupancy rights. This has in one way or another encouraged the chiefs who
are the regulators of customary land to concentrate on the selling of land to individuals
and organisations for monetary gain. This has eventually disadvantaged the local
people who are displaced without compensation when the customary land they have
occupied for many years has been sold and converted to leasehold tenure
2.4 Circular No. 1 of 1985
It must be noted that the Lands Act 1995 does not provide for the administrative
procedures in land alienation. However, the Act has given power to the Minister to
make regulations for the better carrying out of the provisions of the Act. The law
provides that:
(1) The Minister may, by statutory instrument, make regulations for the
better carrying out of the provisions of this Act.
(2) In particular, but without prejudice to the generality of subsection (1),
such regulations may prescribe-
(a) the terms, conditions and covenants of leases;
(b) the procedure for applying for the President's consent to any
transaction relating to or affecting land;
(c) the procedure for converting customary tenure to leasehold tenure;
(d) the procedure for applying for the renewal of a lease;
(e) the ground rent for land;
(f) fees for transactions in land; and
(g) any other matter which is to be or may be prescribed under this
Act.
46

45
46
Section 31 of the Lands Act 1995 As amended by Act No. 20 of 1996
15

It is in this regard that the Statutory Instrument No. 89 of 1996 was release among
other regulations. The Circular No. 1 of 1985 also provides for the procedure on land
alienation. It was released earlier with the view of giving directions to the local
authorities as agents of the Commissioner of Lands. This was in pursuant to the policy
of decentralisation and the principle of participatory democracy. It was in the view of
this that it was decided that District Councils should participate in the administration
of land. To this effect, all District Councils were responsible, for and on behalf of the
Commissioner of Lands, in the processing of applications, selecting of suitable
candidates and making recommendations as may be decided upon by them.
The recommendations made by the District Councils are therefore invariably accepted
unless in cases where it becomes apparent that doing so would cause injustice to others
or if a recommendation so made is contrary to national interest or public policy
47
.
However, the circular though being used as the main guideline in the alienation of land
under customary tenure has no legal force. This is so because it is just an
administrative document intended for district councils to follow and has no legal
binding on the Commissioner of Lands.
This was illustrated in the case of Yengwe Farms Limited v Masstock Zambia limited
the Commissioner of Lands and the Attorney General
48
. The brief facts of the case
were that the appellant was given a 99 years lease for Farm No. 4890 in 1986. Initially
the appellant had applied for 10,000 hectares in the Lusaka rural area. The application
was considered by the District Council after necessary consultations with the local
chief and the people and was sent to the Commissioner of Lands. The application was
then considered by the Commissioner of Lands and the appellant was given 2,000
hectares and Title Deeds were issued. Later after obtaining the Title Deeds, the
President of the Republic of Zambia approved two farms for the 1st respondent. The
President directed that the 1st respondent be given 20,000 hectares of land.
The Commissioner of Lands however reduced the allocation to 5,000 hectares of 2,500
hectares of each farm. One of the farms encroached on Farm No. 4890. The
encroachment created took the parties to the High Court. The Commissioner of Lands

47
The circular No. 1 of 1985
48
(1999) Z.R. 65
16

directed the appellant to surrender title deeds to his farm and informed him that he (the
Commissioner of Lands) had made a mistake in allocating the appellant 2,000 hectares
in Trust Land and that the committee had only approved an allocation of 18 hectares
of land. The Commissioner of Lands relied on the contents of circular No. 1 of 1985
which restricted allocations in reserves and trust lands. However, the Supreme Court
held that the circular was not directed at the Commissioner of Lands and therefore he
was legally entitled to award more than 250 hectares of land depending on the
circumstances of each case. Nonetheless it must be noted that, the Commissioner of
Lands is bound to follow the provisions of the Lands Act dealing with customary land
tenure.
2.5 Effects of tenure conversion
The conversion of tenure was enhanced in the third republic because the government
of the day had a view that the conversion of tenure provision in the law was one of the
means to provide greater security of tenure to customary land users. Not only that but
also the means to encourage investment in agriculture production.
49

However, Sichone (2003) states that:
The right to convert customary tenure to leasehold was first
introduced by the colonial administration through the Reserves and
Trust Land (adjudication of titles) Ordinance of 1962. This Ordinance
contained the grant of normal titles over land held under customary
law; however, it was never used as there was no demand to do so at
the time
50
.
However, it is submitted that the reason for this enhancement was due to the growth in
population and positive progression in the socio and economic development in the
country. As earlier alluded to, customary land tenure in Zambia is legally recognised
51
.
Furthermore, the conversion of customary tenure to leasehold tenure requires the

49
MMD. (1991). Movement for Multi-Party Democracy Manifesto. Lusaka: Campaign
Committee, Movement for multiparty democracy.
50
Sichone F (2003). Land Administration in Zambia with particular reference to customary
Land: Paper presented at a Seminar Organized by the Zambia Land Alliance, University of
Zambia Senate Chamber, 28th June, 2008, Lusaka.
51
Supra
17

consent on the chief and the local authority in the area where the land is situated
52
.This
arrangement has essentially afforded customary leaders a legalized means of
effectively resisting land alienation, which is an important factor underlying the low
rate of customary land alienation. Another legal requirement is that of consulting any
person or body whose interest might have been affected by any land alienation
53
. It
therefore follows that the all procedure of conversion is legally binding and any
procedure other than the one provided for would be rendered null and void. However,
it should be noted that once land under customary tenure has is converted to leasehold
tenure, the chief has no authority or control over the administration of that particular
land.
This was illustrated in the case of Makwati v. Chieftainess Nkomeshya
54
where the
facts of the case were that the appellant bought land from one Mapulanga who had
converted his land in Chieftainess Nkomeshyas areas into leasehold. The chieftainess
had given consent to the conversion as required by law. The dispute arose when the
appellant was stopped by the chieftainess from making any improvements on the land.
The chieftainess argued that the appellant had no authority to go on with developing
such area. The legal issue in this matter for the Tribunal to determine was whether the
chieftainess still had control over the land that was on title.
However, the Lands Tribunal held that from the time the title deed was issued to the
applicant the land in issue ceased to be traditional land and therefore the respondent
ceased to have control over it. It is in this regard that once the tenure is converted it
also depicts the change in the law that who apply. In this case customary law no longer
applied because it has been replaced by statutory law. Chiefs on the other hand have
argued that since the consent is sought from them in the conversion process, they
should also be at liberty to recall leasehold title and convert the land back to
customary tenure. This argument is not supported by any legal provision as the only
statutory provision with relevance to this is that which provides for the conversion of
land from customary to leasehold tenure
55
.

52
Ibid
53
Ibid
54
LAT/60/1997
55
Ibid
18

The conversion of customary land to state land has created conflicts in many
customary areas of Zambia. Following the implementation of the Land Act 1995, the
government failed to pass any statutory instruments- the rules and procedures that
govern the administration of land. It has been observed in areas converted for tourism
purposes, under the premise of market based land reform that local people have lost
full access common pool resources upon which they have depended for their
livelihood.
It is submitted that the conversion of customary land to leasehold has been perceived
by many, as a tactic by the state to deprive the indigenous people of the land. In fact,
the provisions for conversion of customary land to leasehold are intended to cause the
same villagers to convert their land to leasehold. It is actually due to this perception
that some villagers are disinclined convert the customary land because once land has
been converted; they will be subjected to paying ground rent
56
and also be subjected to
leasehold conditions. In any case it must be realised that the breach of these conditions
would invariably lead to seizures and may render the majority of the indigenous
people landless. It therefore follows that since Zambia has a growing economic
development as one nation, it is undoubtedly necessary to come up with laws that
would provide the set of rules on the subject of land acquisition and alienation.
2.6 The Lands Tribunal Act
The Lands Tribunal was established under the Lands Act of 1995.
57
The main
objective of establishing the Tribunal was to give the public a fast-track method of
resolving land disputes that is efficient and cost-effective compared to the established
judicial or court system. It is a circuit court and can sit at any place in Zambia where
there is a dispute. It is actually realised that the jurisdiction of the Lands Tribunal has
now been straightened and harmonised with other laws on land administration.
Section 4 of the Lands Tribunal Act No. 39 of 2010 provides that:
(1) Subject to the Constitution, the Tribunal shall have jurisdiction to
hear and determine disputes relating to land and in particular-

56
Lands (Customary Tenure) (Conversion) Regulation 5
57
Section 20 of the Lands Act Chapter 184 of the Laws of Zambia
19

(a) To inquire into, and make awards and decisions in, any dispute
relating to land under the Lands Act, the Lands and Deeds
Registry Act, the Housing (Statutory and Improvement Areas) Act
or any other law;
(b) To inquire into, and make awards and decisions in, any dispute
relating to land under customary tenure;
(c) To inquire into, and make awards and decisions in, any dispute
relating to, any dispute of compensation to be paid in relation to
land under the Lands Act, the Lands Acquisition Act or any other
law;
(d) To inquire into, and adjudicate upon, any matter affecting the land
rights and obligations, under the Lands Act, or any person of the
government;
(e) To hear and determine appeals against a direction o decision of a
person in authority relating to land under the Lands Act, the
Lands and Deeds Registry Act, the Housing (Statutory and
Improvement Areas) Act or any other law;
(f) To make orders for the rectification of entries made in the Lands
Register;
(g) To make orders for the cancellation of certificates of title that it
considers to have been erroneously issued or have been obtained
fraudulently, or that it otherwise considers necessary to cancel.
(h) To make any declaration that it considers appropriate and issue
any order for the implementation of the declaration;
(i) Subject to the State Proceeding Act, to grant injunctive relief or
any other interlocutory relief that it considers appropriate; and
(j) To perform such acts and carry out such functions as may be
prescribed under any other written law.
On the basis of this Act, the Lands Tribunal now be deals with land under customary
tenure as well as statutory improvement areas. The Lands Tribunal is now at the same
level with the High Court for Zambia and its order can enforced as if it were an order
of court, if no application for the review of the order is made
58
.
This Act has come as a positive stride in the administration of customary land because
disputes resolution under customary tenure has been enhanced. These provisions
therefore indicate that the operations of the Lands Tribunal shall not only be restricted
to land under statutory or leasehold land. The guiding spirit behind the functions of the
Lands Tribunal is that it would provide an alternative to the High Court. In other

58
Section 2 of the Lands Tribunal Act No. 39 of 2010
20

words, the alternative land dispute resolution mechanism is seen to be the Lands
Tribunal in both leasehold and customary tenure. It therefore follows that the decision
by the Supreme Court in the case of Mwangela and Nsokoshi v Ndola City Council
59

has been overruled on the basis of this Act.
2.7 Occupation of vacant land
With regard to the occupation of vacant land the law provides that;
(1) A person shall not without lawful authority occupy or continue to
occupy vacant land.
(2) Any person who occupies land in contravention of subsection (1) is
liable to be evicted
60
.
However, this piece of legislation does not provide the adequate mechanism for
enforcing this particular regulation. For instance, the starting authority in the
occupation of land under customary tenure is the chief. Conversely, most landholders
on customary tenure inherited their land parcels from their fore fathers and there are
no records that their fore father got authority from the chief to settle on the piece of
land. The problem that this section of the act has created is that, people holding land
under customary tenure normally have no documentary evidence to show that they
have authority to occupy a given piece of land.
As a result of this, there are reports that people who have been occupying a certain
piece of land have been evicted to pave way for the new investor who has bought the
land. This clearly indicate that the holding of land under customary tenure is insecure
as it has not even been safeguarded the main legal framework of the country. It is
therefore submitted that this piece of legislation can only be effective if the
registration of land right under customary tenure is legally provided for in the Act.
Therefore for as long as there is no legislation of land of customary land rights, the
defense of implied authority from local chiefs will suffice. This provision on illegal
occupation of vacant land gives no option to those occupiers who have occupied the
land throughout their lives and lives of ancestors even when land has been alienated
without regard to the interests of such people.

59
(2000) Z.R. 131
60
Section 9 of the Lands act Chapter 184 of the Laws of Zambia
21

CHAPTER 3
INSTITUTIONAL FRAMEWORK UNDER CUSTOMARY TENURE
3.1 Introduction
All land in Zambia is vested absolutely in the President who holds it in perpetuity for
and on behalf of the people of Zambia.
61
All land in Zambia is administered and
controlled by the President for the use or common benefit, directly or indirectly of the
people of Zambia. This indicates that customary land just like state land is also
controlled by the President. However, Customary tenure is not expressly defined in the
Lands Act of 1995 but it provides for the recognition of customary tenure as a form of
landholding in the country. Customary land is taken to constitute all land that was
previously or before the commencement of the Lands Act referred to as Reserve land
and Trust land. In administering customary land, there are various institutions that play
important roles in Zambia.
In order to provide an effective administration for land under customary tenure the
institution framework should be well established. The institutions responsible to
customary administration should provide adequate information to the land seekers in
order to promote transparency. It is actually the writers view that availability of land
information is a vital key to enhance an effective customary land administration. Once
the institutions involved in the administration of customary land are equipped with
land information and disseminate it to the public, conflicts would be lessened. This
would ensure a transparent land administration everyone would embrace and give total
support to the chiefs who are the regulators of customary land.
However, this can only be made possible if customary land administration is totally
left to start with the chiefs and end with the with the Commissioner of Lands at the
Ministry of Lands and not the other way round. This in turn would provide a proper
customary land tenure security. Nevertheless, the question arises as to how this land
information can be made available and how it would ensure effectiveness in the
administration of customary land. The answer lies in the implementation of a well-
coordinated institutional framework. Furthermore, there should be total transparency
in the whole process. However, all these can be made available through good

61
Section 3(1) of the Lands Act, Chapter 184 of the Laws of Zambia
22

traditional governance. Thus good traditional governance is the key in the provision of
an effective customary land administration. Moreover, the main institution involved in
the administration of customary land should be located within the customary area. The
customary tenure institutional framework is well established in Zambia. These will be
discussed collectively and thereafter individually in order to ascertain their
effectiveness.
The role of ensuring that the customary land in a given locality is administered for the
benefit of the indigenous people is carried out by the Headmen and Chiefs. These are
known to have authority to administer the unwritten customary law based on their
respective tribal customs and traditions. The local authorities also have a role to play
in the administration of customary land. They receive applications from the land
seekers and make recommendations to the Commissioner of lands after evaluating
requests for the conversion of customary land to state land. However, the chief needs
to give consent before the local authorities act upon the application. The district
councils have authority to administer land within their districts and have responsibility
for land-use planning.
In the process of converting land from customary tenure to leasehold tenure, the
Ministry of Lands is the principle institutional framework responsible for land
administration and management. The current institutional arrangement places
responsibility on the Ministry of Lands to formulate and co-ordinate the
implementation of statutes related to land management in Zambia. At the central level,
the Commissioner of Lands within the Ministry of Lands exercises authority on behalf
of the President.
The establishment and function of the Commissioner of Lands are derived from
Statutory Instrument No. 7 of 1964 which has since been revoked and replaced with
Statutory Instrument No. 4 of 1989. The district councils process applications for
leases of state land and evaluate requests for the conversion of customary land to
state land. As earlier mention in the previous chapter the chiefs are the first point of
contact in the alienation of land under customary tenure. This chapter will discuss
these institutions involved in the administration of land under customary tenure.

23

3.2 Institution of chiefs
Chiefs and headmen have a definitive authority to administer unwritten customary law
based on their respective ethnic customs and traditions
62
. On the other hand they also
have power and authority in land matters. However, the specific powers and authority
are generally expressed and not specific. The institution of chief which is established
by the Chiefs Act expressly provides for the functions of the chiefs as follows:
Subject to the provisions of this section, a Chief shall discharge-,
(a) the traditional functions of his office under African customary law in
so far as the discharge of such functions is not contrary to the
Constitution or any written law and is not repugnant to natural justice
or morality; and,
(b) Such functions as may be conferred or imposed upon him by this Act
or by or under any other written law.
63

This indicates that the chiefs are expected by law to discharge there functions
according to the constitution and any other written law. It is in this regard that the
chiefs have the legal obligation to play in the alienation of land as provided for in the
Lands Act. As earlier mentioned, the chiefs have been mandated by the Lands Act to
be the first point of contact in the acquisition of land under customary tenure. It
therefore follows that without the chiefs consent in any alienated land, that particular
land cannot be converted to leasehold
64
.
It is realised that there 73 tribal grouping in Zambia with different customs and
tradition. Furthermore, it is a fact that customary land is held under customs and
traditions governing land use and ownership. These differ from place to place and are
usually not written. However, there are common features in the various forms of
customary tenure. For instance, to obtain a title deed in customary areas; one needs to
follow the process of conversion of tenure from customary to leasehold. Titles can
only be issued when land has been converted. The process normally starts with the
identification of land through a village head or Chief.

62
Supra
63
Section 10(1) of the chiefs Act chapter 287 of the laws of Zambia
64
Supra
24

There are two categories of customary land seekers. The most prominent are the
outsiders who come to acquire customary land with the view of converting to
leasehold tenure. The other category is that of the villagers who have settled in the
area. An outsider will approach either a headman or visit the chief directly. Usually,
outsiders have particular areas in mind as they approach the chief. It is the duty of the
headman to verify if that parcel of land is occupied by the villagers or not. As soon as
the headman confirms, the request is submitted to the chief for endorsement.
The process of endorsement is basically a short interview with the applicant.
Thereafter, the chief seeks to determine the personal particulars for the applicant thus
establishing the quality of the applicant. Depending on the size of customary land
sought for, the chief may personally give a demarcation of the parcel of land. Before
the application is presented to the council, there must be a sketch plan of the land for
which application is made. This is generally done by an agricultural assistant from the
Ministry of Agriculture's Land Use Planning Office, at provincial level.
The agricultural assistant has access to a 1:50,000 topographic maps, on which the
applicant locates the land. The assistant then visits the parcel, verifies the location, and
clears a 2-4 meter strip around the boundary. Sometimes this is done in the presence of
the headman, at other times in his or her absence. This is a critical step in making sure
everyone understands which land and how much is involved. A sketch map is prepared
at the office based on the field visit and the topographic map base. The applicant will
have the sketch plan signed by the chief to confirm that he has consented. The
applicant would then take the consent letter to the council in the area where the land is
situated.
On the other hand, it must be noted that, the chief does not sell the land to the villagers
but may receive money as a token of appreciation for the land given. In most parts of
the country, however, chiefs with the assistance of headmen grant occupancy and use
rights to customary land and oversee the transfer of it between subjects
65
. They
regulate common pool resources for instance; the opening and closing of grazing areas
or the cutting of thatching grass or trees and adjudicate a range of land-related

65
Brown T (2003) Contestations, confusion and corruption: Market-based land reform and
local politics in Zambia.
25

disputes. Chiefs are also often the only point of contact between state officials, donors
and rural communities
66

It therefore follows that without the authority of the chiefs there can be no conversion
of land from customary to leasehold tenure. This role is supported by the Lands Act
which provides that;
The conversion of rights from a customary tenure to a leasehold shall
have effect only after the approval of the chief and the local
authorities in whose area the land to be converted is situated, and in
the case of a game management area, and the Director of National
Parks and Wildlife Service, the land to be converted shall have been
identified by a plan showing the exact extent of the land to be
converted
67
.
The applicant then submits an application to the local authorities for further scrutiny. it
is observed that the role that the institution of chiefs play in the administration of
customary land has further been upheld by the Lands Act by providing that;
Notwithstanding subsection (3), the President shall not alienate any
land situated in a district or an area where land is held under
customary tenure-
(a) without taking into consideration the local customary law on
land tenure which is not in conflict with this Act;
(b) without consulting the Chief and the local authority in the area in
which the land to be alienated is situated, and in the case of a game
management area, and the Director of National Parks and Wildlife
Service, who shall identify the piece of land to be alienated;
(c) without consulting any other person or body whose interest might be
affected by the grant; and
(d) if an applicant for a leasehold title has not obtained the prior
approval of the chief and the local authority within whose area the
land is situated.

66
Ibid
67
26

However, it is realise that there are limitation and challenges in the chiefs functions
with regard to the administration of customary land. For instance, modern land
administration techniques require that people who are directly involved are trained in
aspects of physical planning land use, zoning, surveying and land registration skills.
Nonetheless most chiefs do not possess these qualifications. On the other hand,
numerous cases of abuse in customary land administration have been reported on,
among others, people obtaining title deeds to land in customary areas without
consulting chiefs and local councils
68
.
It therefore follows that lack of the specific legal safeguards to role chiefs play in the
administration of land under customary tenure has undermined the importance of the
institution of chiefs. Furthermore, there are no institutional structures for the chiefs to
operate in. This also has contributed to the inefficiency of the chiefs operation. In
other words, the institution of chiefs is like a one man operation because there are no
committees to scrutinise the applications from land seekers that come for the
acquisition of customary land. This poses a serious challenge to the principles
transparency and accountability.
3.3 Local authorities
Local authorities are established under the Local Government Act
69
. In an effort to
improve efficiency in the administration of land the government felt that the district
councils should participate in the alienation of land countrywide. Following this
development, government did not make any amendments to Land (Conversion of
Title) Act but instead, issued General Policy guidelines. It was on the basis of this
policy that the Circular No. 1 of 1985 was released to give direction to all district
councils on the procedure of land alienation.
In order to consolidate this approach, the Lands Act was enacted in 1995 and legally
recognised the local authorities in the process of converting land from customary to
leasehold tenure
70
. It is worth pointing out that local authorities are involved in the
alienation of both categories of land in the country. The only difference is that, in

68
See also the Zambian Sunday Mail (27th March 2002), the Zambia Daily Mail (1st April
2002), the National Mirror (29th Dec. 4th Jan 2002).
69
Chapter 281 of the laws of Zambia
70
Ibid
27

circumstances where land is held and managed in a customary manner, the local
authorities are not directly involved. This simply indicates that they only get involved
when a person holding land under customary tenure intends to convert it to leasehold.
The authority given to the local authorities in the conversion of customary tenure to
leasehold is only limited to ensuring whether or not there is a conflict between
customary law of that area and the Lands Act
71
. To recommend conversion, the
council must ensure that the chief has been consulted, that a layout plan has been
properly drawn, and that the land has been physically inspected to confirm that
settlement and other persons interests and rights have not been affected by the
approval of the application
72
.
It is therefore up the satisfaction of the local authority that they make
recommendations to the Commissioner of Lands for approval. Provided that the full
Council endorse the application, the land will then be surveyed and beaconed. The
application and survey plan are then forwarded to the Commissioner of Lands who
will normally approve the application on behalf of the President and convert the land
parcel to state land. In that case the land will cease to be under the jurisdiction on the
Chief. In practice, the chiefs influence over the situation is apparently nominal. This
is a source of contention in most chiefdom. The chief however is unlike to regain
possession of the land because someone else will step in and acquire it if it is
abandoned. Accordingly, under the Lands Act of 1995, the granting of a 99-year lease
is dependent on a detailed land survey and beaconing of the land boundaries. If it is
not beaconed, only a provisional certificate of title (a 14-year lease) can be granted. At
the end of that period, the land reverts back to customary land.
It must be noted however that local authorities are not planning authorities and
therefore this function is left with the provincial planning authority
73
. From the
foregoing, it is clear that what the law requires in the process of converting customary
tenure to leasehold the actually consent from the chief and local authorities. Mere
consultations from both institutions cannot guarantee the conversion of tenure.

71
Supra
72
Ibid
73
The planning authorities are appointed under the Country and Town Planning Act Chapter
283 of the Laws of Zambia
28

3.4 The Ministry of Lands
Generally, land administration is one of the functions of the Ministry of lands. The
Ministry is mandated to efficiently, effectively and equitably deliver land, maintain
up-to-date land records and provide land information in order to contribute to socio-
economic development for the benefit of the Zambian People and the country
74
. The
Ministry is divided into three departments namely; Lands Department, the Survey
department and the Lands and Deeds Registry Department.
Whereas the conversion of customary tenure to leasehold starts with the chief, the
Ministry of Lands puts a final touch to the conversion. The Ministry of Lands ensures
that areas required for development are properly planned by the Local Authorities and
the Department of Physical planning under the Ministry of Local government and
Housing. The Ministry formulated land policies and legal reforms. However, it is
worth mentioning that despite the Ministry of Lands being the main institution in the
administration of land in Zambia, it has no direct control of customary land
The Lands Department which is headed by the Commissioner of Lands plays a
significant role in the process of tenure conversion. While it is appreciated that all land
in Zambia is absolutely vested in the President.
75
The President alone cannot
physically carry out the work of alienating land. It is in this regard that he has
delegated his powers to the Commissioner of Lands through a Statutory Instrument
76
.
The Commissioner of Lands in turn has the local authorities as the agents. In order to
improve efficiency in the administration and alienation of land, the lands department
has established offices at provincial level. The provincial land officers are established
to perform the functions of granting and disposing of land subject to the directions,
supervision and control of the Commissioner of lands.
77

However, there are no offices at district level even though the district councils are the
ones delegated with the role of land alienation
78
. The Commissioner of Lands as the

74
Ministry of Lands Annual Report, Ministry of Lands, Lusaka
75
Ibid
76
Supra
77
Ibid
78
Despite the recognition of the existence of Provincial and District land officers through the
Statutory Instrument No. 4 of 1989, there are no existing structures at district level
29

head of this department makes grants and dispositions of land to any person subject to
the special and general directions of the Minister responsible for land. It is actually
this department that executes state leases on behalf of the President in whom land is
vested. This authority is specifically bestowed on the commissioner of Lands by the
President through delegation under the Statutory Functions Act.
79
This Act provides
that;
No person may delegate a statutory function with which he is vested
unless he is expressly so authorised by the Act by or under which such
function was conferred or imposed:
Provided that the President, the Vice-President, a Minister, the
Secretary to the Cabinet, the Attorney-General or a Deputy Minister
may, subject only to section six, by writing under his hand, delegate to
any other person any statutory function with which he is vested
80
.
It is therefore by virtue of the second limb of the Statutory Functions Act that has
legally given the powers to the President to delegate the day to day administration of
land matters to the commissioner of Lands in the Ministry of Lands
81
. This indicates
that the recommendations for the conversion of tenure from local authorities go
straight to the Commissioner of Lands who approves on behalf of the president. It is
observed that the Commissioner of Lands facilitates the conversion of tenure and has
no control of any kind for land under customary tenure. This leaves the control of
customary land to the chiefs and their subject unless the land customary land is
converted to leasehold
. Furthermore, the Ministry of Lands face a lot of challenges in the facilitation of
tenure conversion. These challenges range are mainly due to under staffing,
insufficient facilities and equipment for expanding the scope of operations to the entire
country. However, the expansion and decentralisation of the functions is critical in the
provision of an effective land administration. It is realised that there is an increase in
demand for new leasehold. Therefore, action is needed to redress these shortcomings
in the Ministry of lands. The state benefits from the conversion of tenure in that it is a

79
80
Ibid Section5
81
Ibid
30

requirement by that once land has been converted to leasehold tenure the leasee is
obliged to pay ground rent.
Having looked at the institutions involved in the administration of customary land, it is
evident that a well-structured institutional framework is required that would provide
an efficient and effective customary land administration.

31

CHAPTER 4
ANALYSIS OF HOW CUSTOMARY LAND IS ADMINISTERED
4.1 Introduction
Land under customary tenure has been hailed to be the greatest resource and at the
same time the backbone for wealth in many communities whether urban or rural.
Nonetheless, it has not fully been utilized by the local communities to enhance its
development. This has been necessitated by various shortcomings in both the legal and
institutional frameworks. It is observed that the main legal framework for the
administration of land which is the Lands Act lacks collaboration with other statutes.
On the other hand, the institutions that are involved in customary land administration
lack coordination and this has adversely contributed to the ineffective customary land
administration in Zambia.
It is mainly due to these shortcomings in the legal and institutional framework that
people involved in the allocation of land have taken advantage of the situation and
therefore do not stick to the laid down procedure. Although the government has not
taken a step in enacting the law to govern the administration of customary land in
Zambia, laid down procedures are there to avoid confusion in the process
82
.
Unfortunately there has been no proper sensitisation of these procedures and as such
there have been a lot of malpractices in the allocation of customary land. On paper,
these procedures seem to protect the interests of customary landholders and limit the
possibilities for administrative abuse. In practice, however, some council secretaries
and council members have used their positions of authority to allocate lands to
themselves and to local elites or investors
83
.
It therefore follows that, the land tenure reforms that have taken place in Zambia is
deficiency of the full support of making the administration of customary land tenure to
be so effective. Conversely, the governance of customary land remains a serious
concern, especially as the majority poor live in the rural areas under customary tenure.
This category of land tenure is mainly associated with the majority poor because the

82
Supra
83
Brown. T. (2005). Contestation, confusion and corruption: Market-based land reforms in
Zambia at p.100
32

customary land rights and the customary land administration are not strengthen and
protected by law.
4.2 Defects in the legal framework
The shortcomings in the legal framework that this research has identified need to be
pointed out so much that the root cause of the ineffectiveness can be traced. It is also
important to point out that the current phase of land reforms in the country dates from
colonial government which introduced new law in relation to land alienation. The
main aim of these reforms was initially to ensure that both the white settlers and the
indigenous people had pieces of land to sustain their livelihood. However the present
day land reforms have focused on the land market reforms initiated by the MMD
government which were very much focused on the liberalization of the land
administration in Zambia
84
. The Lands Act 1995 is the main legal framework that
governs the land issues in the country. The Act is actually a very brief piece of
legislation, pointing out specific areas pertaining to land alienation in Zambia.
However, the Act has been criticized by some quarters of society for being too brief
and lacking the full elaboration of the full details especially with regard to land under
customary tenure.
Although it is a significant improvement on earlier legislation, a number of defects
exist in the current Lands Act 1995 which have significantly contributed to the
ineffectiveness of land administration especially with land under customary tenure.
The law as provided for in the act recognizes customary tenure to a limited extent
85
.
The Act does not state the specific details and procedures on the alienation of
customary land. For instance section 8 (2) provides that;
Notwithstanding section seven, after the commencement of this
Act, any person who holds land under customary tenure may
convert it into a leasehold tenure not exceeding ninety-nine years
on application, in the manner prescribed, by way of-
(a) a grant of leasehold by the President;

84
The 1991 MMD manifesto
85
Section 7(1) of the Lands Act
33

(b) any other title that the President may grant;
(c) any other law.
The legal framework only provides for the conversion of customary tenure to
leasehold. Nonetheless, the Act is silent on the acquisition of customary land by the
indigenous people who do not have the intention to covert to leasehold. This is one
serious defect that implies that the main aim of the act is to provide for the conversion
only. On the other hand, it has been observed from this provision of the Act that it
does not elaborate further on what should be followed after converting customary land
to leasehold. The law is silent on what happens when the customary land so converted
is abandoned or if the period of 99 years is exceeded.
Impliedly, there is no provision for converting land back to customary tenure. It
therefore follows that if Customary Land is converted to leasehold and for some
reason it is repossessed, it no longer falls under the jurisdiction of the chief
86
. Thus it
would seem that once land is granted in leasehold, all customary rights to that land are
extinguished and so is the authority of the chief over that land
87
. There is actually need
to provide for the conversion of leasehold tenure back to customary tenure in order to
guarantee security of customary tenure. Not only that, but they should be rules and
regulations that would govern the administration of customary land in an event that it
is not converted to leasehold.
It is further observed that the system of land administration is individual or personal in
nature relying on the Chief, Commissioner of Lands and the President. It is observed
that the decision made by the chief in alienating land for conversion is unilateral in
nature. It therefore follows that the transparency of the chiefs decision is highly
questionable as he does not need to consult and village committee or even his subjects.
Furthermore, the administration is guided by Circular No. 1 of 1985 which lacks
statutory force. Instead of enabling the administrative hold-ups the Circular
compounds the administrative problems of disorder applicants must go through to get
their applications for land to be processed. Besides the Chief, the Act does not
recognize communitys own systems of land tenure administrations predominant in

86
Supra
87
Supra
34

villages and communities though these are recognised and are being applied and
implemented by local systems. If local authorities, traditional ruler or district council,
and the Commissioner of Lands do not have an effective database or monitoring
system to coordinate the management of leases then alienation of customary lands
does not guarantee a positive outcome.
Furthermore, the Lands Act does not establish the office of the Commissioner of
Lands. This office is only established by the Statutory Instrument
88
which in turn does
not also state functions of the office bearer. This has exposed the office to a lot of
uncertainties, abuse and corruption as there are no guidelines for the execution of the
duties for the Commissioner of Lands. It is observed that the Commissioner of Lands
is in fact one person who is at the center of land administration and the law allows him
to carry out the work in his discretion. On the other hand, the lease fee paid to the
Commissioner of Lands is not strategically connected to the District Councils or the
chiefs and therefore does not ensure local appreciation of the alienated land.
In addition to that, there are conflicts that arise in occasions where the interests of the
Chief and the subjects are at variance. Although the Act recognises the rights of the
person occupying land in a customary area, only recognises the Chief and the Local
Authority as bodies that should make recommendations to the Commissioner of
Lands. The interest of individuals or subjects occupying customary land is not
expressly brought to the attention of the Commissioner of Lands when considering and
application. This, to some extent, would not prevent displacements in cases where
both the Chief and the Local authority have consented. Equally, where there is a
conflict between the Chief and the Local authority in the area on a matter of land
alienation, the Act is silent as to whose interest or authority should prevail.
Moreover, the Act gives chiefs the legal power to approve requests for tenure
conversions.
89
In most cases this empowerment enriches individual chiefs because
there are no well-established institutions to counter check the unilateral decisions
made by chiefs. The empowerment further threatens the chiefs position for the simple
reason that the current legal framework has the potential to promote conversions to the

88
Ibid
89
Ibid
35

extent that chiefs lose their physical territory
90
. There is no provision in the legal
framework that addresses the plight of the people that are displaced on customary land
to pave way for the development of the mines.
Although the Lands Act recognizes customary tenure in Zambia but on the other hand,
the same Act does not give effect to the registration of ownership rights. This has
rendered customary tenure to be insecure. For instance, most people leaving on the
vast portion of customary land that has now been opened up for conversion to
leasehold have experienced evictions even at short notice. However, it must be
appreciated that the intention of parliament when enacting the Lands Act was to
spearhead development in rural areas and provide a market based land reforms. This
intention has been short lived because most customary land has remained undeveloped
because some chiefs are reluctant to give out land for fear of losing authority to the
state. On the other hand, the intention of parliament has been partially achieved with
difficulties. The people are displaced form customary land that has been alienated for
the purpose of conversion to leasehold without being compensated.
The best example that illustrates this assertion is the recent issue of the Chisola dam
construction in which thousands of people have been displaced by a mining company
in Chief Musele in Solwezi in North Western Province. This is a typical case in which
Kalumbila Minerals Limited obtained 50,000 hectares of customary land for their
project from chief Musele in Solwezi District
91
. Apart from the issue of not
considering environmental aspects by the investor, the residents are of the view that
they have been deprived of the land they have occupied for ages
92
. Even so, this is
mainly attributed to governments failure to pass any statutory instruments to provide
the rules and procedures that govern the administration of customary land in the
country
93
. The enactment of well-coordinated but separate Acts that would carter for
both categories of land in Zambia is a critical step in the provision of an effective land
administration and can act as a strong baseline for the same for future land reforms

90
Brown, T. (2003). Contestation, confusion and corruption: Market-based land reform and
local politics in Zambia. Unpublished paper, Crewkerne: the IDL group.
91
The Post News Paper (Fri 21 June 2013).
92
Ibid
93
Adams, M. (2003) Land tenure policy and practice in Zambia: issues relating to the
development of the Agriculture sector, Draft 2003, mokoro Ltd, oxford.
36

4.3 Defects in the institutional framework
As stated earlier on, the process of acquiring land under customary tenure normally
starts with the chief who has to give consent. In this regard, the chiefs are by custom
and practice recognized as institutions that assist the president in the administration of
customary law. However, in performing their duties with regard to the conversion of
customary tenure to leasehold, the chiefs authority only ends at issuing a consent
letter. There is actually no specific statute or custom that defines the role that the chief
should play with regard to the customary land in his area. This disparity has led to the
abuse of power by the chiefs as in most cases they feel they can execute more
authority than is assigned to them
94
. There is actually need to revisit the various
statutes that establish the institution which are responsible in the administration of land
in Zambia. In this regard, the chiefs are the main institutional framework in the
alienation and administration of customary land in the country. This is so because they
play a role in the alienation of land both for the purpose of converting to leasehold for
use and for the occupation by the indigenous people. However, it is observed that there
is need to establish village committees that would approve the alienation of customary
land.
4.3.1 Chiefs
From the way the chiefs handle the allocation of land, it is clear that the most of them
do not understand the regulations that have been put in place in terms of granting
customary land rights. As such, they have resorted to sale customary land to foreigners
in order to enrich themselves at the expense of the local people. The defects in the
operation of the institution of chiefs in the way they give out land under customary
tenure has actually created the conflict between government and the chiefs whose
views are at variance
95
. The main challenge the institution of chiefs face in the issuing
or in giving consent to the conversion of customary tenure to leasehold is that they are
mandated to handle issues alone. This sometimes subjects the chiefs to corruption.

94
Personal interview with commissioner of lands Barnaby Mulenga
95
Following the alleged abuse by the chiefs in the sale of customary land government ended
up banning the exercise in December 2013 in order to verify all suspected cases of abuse.
State bans sale of customary land. (The Zambia Daily Mail 11
th
December 2013)
37

4.3.2 Local Authorities
Furthermore, the district councils being the second in line in the process of converting
customary tenure to leasehold after the chiefs consent do not coordinate well with the
chiefs. Issues have surfaced where people abrogate the channel of starting with the
chief but instead go straight to the district council. In other words there is poor
coordination between the chiefs and the council as well as the commissioner of lands.
The conditions for selecting a suitable candidate are not stipulated in the lands Act as
well as in the Circular No. 1 of 1995. This has also created uncertainties in the way the
selection is done and it is a major recipe for corruption in local authorities.
When customary tenure is converted to leasehold tenure, the land holder is subjected
to paying tax. . However, the money that is raised from taxing leaseholds in a
customary area is not ploughed back in the development of the area but goes straight
to the central treasury. Therefore, the money does not directly benefit the chiefdom. It
is therefore as a result of these financial imbalances that no one can expect these
establishments to effectively administer land without the necessary incomes. When
inadequacies are noticed in customary land administration, these are used to justify
and confirm the supremacy of leasehold tenure.
4.3.3 Ministry of Lands
The administration of land in Zambia is not decentralized. This has therefore
lengthened the procedure of acquiring land. The guidelines that are outlined in the
Circular No. 1 of 1985 are too brief and create an impression that the process is
short
96
. However, the process is long in the sense that the officials that are stated
therein are not located in one place. Take for instance if one desires to acquire land in
the North Western province, he first has to deal with the chief and thereafter proceeds
to the local authority. In most cases, there is a big distance between the two places.
The officials at the council will then have to start the necessary procedure and
thereafter make a recommendation to the office of the Commissioner of Lands at
provincial level.

96
Ibid
38

The effect of non-decentralization of the administration of land is highly reflected
here. Therefore, issues of missing files and non-arrival of recommendations from the
district councils are at any stage of acquiring land. It also follows that since the
administration of land in the country is not done electronically it is very easy to
manipulate the records and in cases involving corruption files at the ministry of Land
have ended up missing. From a practical point of view, placing land administration
offices at the district or local government level would apt to ensure greater accuracy
and effectiveness in the administration of customary land. If these offices are located a
long way from the land for which they hold records, then landowners might not visit
them. Transfers would then take place without notification to the land administration
authorities. This creates some ineffectiveness in the administration system.
There is need to realign and decentralize land delivery systems and procedures
currently dispersed across several Government ministries. The government should
decentralize the operational structure of the Ministry of Lands up to district level and
ensure that the sensitization programme on land administration procedures is put in
place. This would in turn strengthen linkages within the Ministry responsible for Land
and other institutions which have land related functions. Furthermore, the Ministry
responsible for decentralization should ensure that capacity is built in district councils.
Currently, there are Lands Department offices established in all the provinces;
however there are no lands offices at District level
97
.
4.4 The need for an effective customary land administration
In order to maintain an effective administration for land under customary tenure
measures have to be put in place that would provide adequate statistical information.
This information should also be made available to members of society for
transparency. However, it is observed that Zambia has never had any land audit since
independence although the existing statistics which were probably done in the colonial
era indicate that about 94% of land falls under customary tenure
98
. On the other hand,

97
The statutory Instrument No. 4 of 1989 recognizes the existence of provincial and District
Lands Offices; however, there are no established structures at district level.
98
These statistics are bound to change as government embarks on conduction a land audit that
would give a clear picture. It is also expected that this percentage would drop due to the fact
that quite a large portion of customary land has been converted to stated land after the
enactment of the 1995 Lands Act.
39

the legal frame work in the country does not supportively promote the registration of
rights under customary land. As a result of this, no one is allowed to register any
customary land rights.
This has rendered the ineffectiveness in the administration of customary land and the
peoples minds are only set to get some monetary gain when they manage to sale the
land to investors who are capable of converting the land to leasehold. However, the
registration of customary land rights is vital and it would in turn encourage the local
people to spearhead economic and social development in their communities.
Land under customary tenure has been hailed to be the greatest resource and at the
same time the backbone for wealth in many communities whether urban or rural.
Nonetheless, it has not fully been utilized by the local communities to enhance its
development. This is so because no titles or registration of rights are provided for
either in the constitution or the statutes. Although the Constitution anticipates equality
of rights irrespective of status, the law and practice tend to discriminate against
holders of customary rights. Inherent discrimination against customary landholders is
part of the wider scheme initiated during the colonial period. It was in order to
dispossess local people of their land to such an extent that legal recognition was
wilfully not extended to customary land holdings.
It therefore follows that the land tenure reforms that have taken place in Zambia is
deficiency of the full support of making the administration of customary land tenure to
be so effective. Conversely, the governance of customary land remains a serious
concern, especially as the majority poor live in the rural areas under customary land
administration. It is observed that this category of land tenure is mainly associated
with the majority poor because the customary land rights and the customary land
administration are not strengthen and protected by law
99
. It would be a different story
if individual were allowed to register their land rights under customary tenure because
they would take it seriously by developing and investing in the land that they have
acquired.
Although the Lands Act has provided for the recognition of the land under customary
tenure, there are no laid down procedures or supporting statutes that protect the

99
Supra
40

customary land rights
100
. For the administration of customary land tenure to be
effective, it must have a backing from other statutes that should make specific
provisions with regard to the alienation of land under customary tenure. In Zambia the
situation stands that when one owns customary land he is bound to lose it at any given
time if someone who is willing to convert it to leasehold comes along.
It is in this regard that there has been no security in holding land under customary
tenure unless it is converted to leasehold tenure. It is further observed that due to the
lack of a specific legal framework on customary tenure, the chiefs who are the
regulators of customary land have ended up abusing their powers. There can only be
effectiveness in the administration of customary land if the board of community
members is appointed to regulate the alienation of this parcel of land rather than
leaving the role of the regulator to the chiefs. This has proved to be successful in other
African countries with dual land tenure
101
.
At the moment, the chiefs enjoy legal recognition in their capacity as traditional
leaders, but nonetheless, do not have legal rights, as an institution, to administer
customary land. This means that customary land, under their custodianship, is weakly
protected. It must be realised that the poverty levels that exist in rural areas cannot be
eradicated without the empowering of the individual to claim customary land rights. It
is therefore in the light of this that the traditional institutions should be given legal
powers to administer customary land through transparent, accountable and well-
structured provisions reachable at a local level.
Having analyzed the administration of customary land in Zambia, it is evident that an
effective administration is required under well-structured legal and institutional
framework. A proper legal and institution framework would ensure development and
more customary land would be opened up.

100
Supra
101
Botswana enacted the Tribal Lands Act of 1968 which provided for administration of land
under customary land through the creation of the lands boards and its functions
41

5.0 Conclusions and recommendations
The conclusion of this research paper is based on the need to have an effective
customary land administration in Zambia. It has been established in this study that the
effectiveness of the administrations of this category of land in the country would only
be achieved by putting in place an efficient and effective legal and institutional
framework.
This study has revealed under chapter one that the current challenges that are being
faced in the administration of land under customary tenure are from as far back as the
colonial days. This is so because before the white settlers came to Zambia, the
indigenous people considered land as some property that cannot be owned by an
individual. As a result of that, land was perceived to be a communal property. It is in
this regard that there was no need to register land rights.
The coming of the white settlers introduced the leasehold tenure and categorised land
into crown land and reserves. This confined the indigenous people to the land under
reserves which is the present day customary land. This was done in view of providing
the indigenous people with sufficient land and enables them to develop a full native
life. At the same time, it was intended for the separation of white settlers from the
indigenous people. It is in the light of this that most indigenous people have continued
to live in customary land. It is further established that even in the colonial days no land
rights were registered under customary tenure.
However, the recent land tenure reforms that ushered enactment of the Lands Act 1995
came in as an eye opener for customary landholders. This is because the reforms were
market based and therefore put up a market value on land. From what is obtaining on
the ground; the customary landholders have concentrated on the selling of their potion
of land to the elite in order to get some income. The fact that a customary landholder
cannot claim rights on his piece of land has created the insecurity of tenure to such an
extent that most land under customary tenure has remained undeveloped. This is so
because most customary landholders feel they cannot develop the land where they
cannot claim any land rights.
42

As a result of this perception, there is no socio and economic development in most
areas under customary tenure. Accordingly, customary landholders suffer from
insecurity of tenure including land withdrawals and consequent evictions. The State,
which is mandated to protect citizens more especially the poor, has nonetheless
desisted from doing so for fear that investors may be scared away. Adoption of liberal
economic policies has encouraged the spiral of land dispossession particularly against
the indigenous people who already do not have secure rights under customary tenure.
It has been observed in chapter two that there are various pieces of legislation dealing
with land matters in Zambia. Since the large portion of the land in the country is under
customary tenure, it is evident that these legislations mostly affect this category of
land. It is recommended that these legislations be consolidated into one Act so that all
issues of land aspects can be handled as one in order to eradicate the current legislative
problems. This should be supported by effective regulations in form of statutory
instruments. Looking at the ineffectiveness that exists in the administration of
customary land in Zambia, it is concluded that carrying out administration process
with various piecemeal statutes has proved to be inefficient. It is further concluded
that, even though the Lands Act has provided for the consultation of any person whose
interest is affected the by the grant, most customary landholders still feel insecure as
such consultations are rarely done.
Furthermore, it is observed that the current land tenure reforms did not adequately
address the need to revamp the customary land tenure. It is for this particular reason it
has been concluded that the reforms are one sided and only aimed at promoting the
leasehold tenure at the expense of the customary tenure. The legal framework has not
specified the expected percentage of customary land to be converted. With the absence
of land audits in Zambia, customary land is slowly being reduced and eventually all
chiefdoms would find that they do not have regulatory powers over the land where
they are established.
In as much as there are conflicts for land under leasehold tenure, the conflicts in
customary tenure are more than is expected. This is because land conflicts in
customary areas involve mass evictions due to alleged encroachments. From the
aforesaid, this simply indicates that the customary land administration in Zambia has
43

so many constraints that make it difficult for the regulators and other authorities
involved to alienate land in an effective way. On the other hand, it is actually argued
that disputes that arise under customary land tenure cannot be resolved in a fair
manner simply because most of these people holding customary land are ignorant
about the existing land policies, laws and procedures in land administration. They do
not have basic information regarding these documents and the existence of the lands
tribunal. It is therefore submitted that for the administration of customary land to be
effective information must flow from the authorities to the landholders.
It is observed in chapter three that numerous institutions are established to handle the
administration of land. Furthermore, it is observed that the institutional framework
with regard to the administration of customary land lacks coordination. For instance,
the local authorities fall under the Ministry of Local government and yet make
recommendations to the Commissioner of Lands in the Ministry of Lands. The
implication of this is that when there are some anomalies in the way the council has
alienated the land the Commissioner of Land cannot take any action other than
rejecting the recommendation.
It therefore follows that if the institutional framework was well established and
coordinated it would be easier to disseminate information to the grass root level. It is
in this regard that an effective administration in customary tenure can only be
achieved with various factors put in place. These factors should mainly be anchored on
the establishment of a strong legal and institutional framework with proper
coordination.
Having reviewed the present day customary land administration system in the country,
it can be seen that very little has been done to involve the local people and enhance
their capacity in the management of customary land. To build and enhance the local
capacity, we need to understand the roles of the local capacity in the chain of
customary land delivery so as to place customary land administration in a stronger
position both at the country wide and the local level.
The institution of chiefs should be enhanced in order for the chiefs to handle
customary land administration effectively. This can be done by ensuring that each
tribal area has a tribal committee to look into the issues of customary land alienation.
44

This would do away with the shortcomings that currently exist where by the chiefs
make unilateral decisions and sometimes at the expense of local people. It is further
observed that one of the problems associated with chiefs is that some of them are
corrupt. Instead of consulting their subjects before granting approvals, it is alleged that
some chiefs discharge this responsibility alone and corruptly. On the other hand,
government accuses chiefs of not being forthcoming in releasing their land for
development. In fact, some chiefs have sold most of their peoples land to investors
without taking the interests of their people at heart.
Information should also flow to the chief so that they are very much aware of what
happens at each and every stage of land administration. Currently the chiefs are not
adequately informed on the alienation of land under customary tenure, and as such
their main concern is the monetary value of the land involved. However, the local
chiefs need to be sensitized on the fact that customary land is not only meant for
foreign investors with a lot of money but also for local individuals with the view of
using land for agriculture purposes. Conversely, some chiefs claim that they are not
well informed and therefore it is clear that the well informed, usually the elite have an
advantage above the villagers in dealing with land matters.
This research paper has highlighted the essential elements that are prerequisite in the
formation of a formidable and effective customary land administration. However from
the situation obtaining on the ground it can be inferred that the administration of
customary land in Zambia lack these elements and hence the people especially the
indigenous people have not adequately benefited in the acquisition of land under
customary tenure. This is so because most people are not aware of even the inadequate
laws that govern the allocation of land in the country. Information on land
administration is only availed to the elite investors. It is therefore for this particular
reason that land under customary tenure is perceived to only have been reserved for
foreign investors with money. This has introduced a lot of corrupt activities and
rendered the all system not to be transparent at all.
The legal framework of the administration of land especially customary land need to
be revisited in order to bring about the much anticipated effectiveness and equality in
the administration of customary land in Zambia. Furthermore, the administration of
45

customary land should be decentralised in order to make it difficult for people with
corrupt motives to take advantage of the lacuna in the legal framework. It therefore
follows that improvements have to be made to the current customary land
administration in order to guarantee security of tenure which stand in a limbo.
It therefore follows that the solution to the inadequacies highlighted in this research
can only be provided if the administration legal framework is reformed. This should
work concurrently with the well-established institution. The defects that have been
highlighted in this research paper are the major hindrances in the provision of an
effective customary land administration. As the situation stands in Zambia, it could be
inferred that the leasehold tenure has been hailed highly the authorities and as such
customary land holder are perceived to be holding land just in transit waiting for the
elite to come and acquire it and eventually convert it to leasehold tenure.
In order to establish and maintain an effective customary land administration it is
imperative to make some reforms in the legal framework. However, various factors
need to be taken into consideration for this to be achieved. For instance, authorities
should first come to terms with the recognition of customary land rights and clearly
identify the customary authorities that should take up the task of carrying out this
responsibility. This can only be achieved if the administration of land especially that
under customary tenure has been decentralized and the institutional framework put in
place.
It therefore follows that need to revamp and reform legal and institutional framework
for customary land tenure in Zambia should be revisited and strengthened. The
registration of customary land rights should be the main focus of an effective
administration under this tenure. Registration is the process of making and keeping
records about who has what rights to which individual parcels of land. In order to
protect these land rights, accurate and clear records should be mapped and stored in a
Land Registry for easy retrieval. This would in turn reduce land disputes in
communities because the records stored in the land registry can be used in land dispute
resolution when necessary. The registration of communal land right is also important
to provide tenure security and subsequently increases economic and social investment
in land under customary tenure.
46

It has been observed that chiefs have been recognized by the Act as the first to be
consulted in the process of converting customary land to leasehold. This legal
recognition is limited only to the extent that the chief releases a consent letter to the
local authority. Nonetheless, the chiefs can only carry out their duties effectively
without observing any limit in exercising their duties. It is therefore established that if
traditional governance is to be enhanced in the administration of customary land, the
role of chiefs have to be consolidated in the Act. This would provide a formidable
legal framework in revamping land administration under customary tenure.
It is again observed that when land under customary tenure is converted to leasehold
tenure; it would remain so even if the land owner abandons it later on. This means that
land under customary tenure keeps on decreasing and that under leasehold increases.
This would eventually leave a small portion of customary that for which the chiefs will
have little or no say thereby compromising there role in traditional governance. The
introduction of market value on the land under customary tenure has brought about the
break down in the traditional village structure and the traditional leaders are slowly
losing grip on the people. This is because some chiefs are unfortunately; more
influenced by personal rather than community interests in their dealings in customary
land. In the face of weakening quality of the services rendered by chiefs, there is need
to consider new mechanisms that can ensure desired performance as chiefs continue to
work alongside the ministry of lands in administering land rights in customary lands.
It is actually this writers view that availability of information on the alienation land is
a vital key to enhance an effective customary land administration. This is so because if
the customary land stakeholders have adequate information on land issues, problems
of double allocation would be averted. This would ensure a transparent land
administration everyone would embrace and give total support to the chiefs who are
the regulators of customary land. However, this can only be made possible if
customary land administration is totally left to start with the chiefs and end with the
appropriate government wings and not the other way round.
This in turn would provide a proper customary land tenure security. Nevertheless, the
question arises as to how this land information can be made available and how it
would ensure effectiveness in the administration of customary land. Furthermore, there
47

should be total transparency in the whole process. However, all these can be made
available through good traditional governance. Thus good traditional governance is the
key in the in the provision of an effective customary land administration. Moreover,
process of conversion of tenure should be decentralised in order to make it easier for
the local authorities in collaboration with the chiefs to set up the administration
framework in their specific locations.
5.1 Recommendations
Based on the above conclusions, this research paper further recommends that rural
management boards should be implemented in chiefdoms. These boards should be
composed of the chief, village representatives and representatives from district
councils. This would achieve transparency as land seekers would have to be approved
by the board and not the chief alone. Furthermore, it is observed that the introduction
of market based land reforms on the people without consultations and patience has
indeed not benefited the indigenous people with regard to the acquisition of customary
tenure.
It is therefore recommended that registration of customary land right be provided for
in the statute. There is also need to reduce the existing insecurity by finding affordable
title to villagers whose areas have already been affected by these market based land
reforms. Customary areas should be allowed to evolve with minimal government
intervention. However, it is the role of the Government to provide basic infrastructure.
The land development fund should be implemented at district level to allow districts
councils to plan for their areas.
It is further recommended that all institutions concerned with the administration of
customary land be relocated to the Ministry of Lands. This would ensure efficiency
and effectiveness in customary land administration. The fact that the customary land
institutional framework is established in various Ministries makes it difficult to handle
administrative issues in an effective way. It is in this regard recommended that the
institutions involved in the alienation and administration of land be established in one
Ministry and decentralised so that it is close to the people. This would make it easy to
iron out pertinent issues that arise in the process of ensuring that an effective
customary land administration is delivered.
48

It is recommended that in the allocation of customary land all relevant institutions and
authorities should be consulted. This can only be made possible if all these institutions
fall under one ministry or board which in turn be guided by the statute. That in the
customary land sector in particular, consultation should be extended to the traditional
authorities. Land allocation boards be set up at provincial and district levels to advise
on allocation of land. Generally, the research found that councils continued with land
allocation function. However, they lack capacity to prepare and plan the land including
surveying to make it ready for alienation. On the other hand, it is a big problem that
the Commissioner of Lands has not decentralised land administration to councils more
especially township and rural councils where the vast portion of land falls under
customary tenure.
As agents of the Commissioner of Lands, the councils have very limited role to play
in customary land administration. This indicates that the majority of the functions are
carried out by the Commissioner of Lands. It is however recommended that the office
of the Commissioner of Lands be decentralised to District level. This would ensure
transparency in the administration of customary land especially that Council bodies
are established by a democratic process. On the other hand, the Commissioner of
Lands is an appointee, and there is no democracy on how he comes in office besides
the fact that he administers his functions and takes some of his crucial decisions all
alone. It is recommended that the office of the Commissioner of Lands be established
by an Act of Parliament.
Concurrently, to strengthen a self-governing customary land administration, there is
need to develop, a straightforward participatory procedure that would be applied
countrywide. These guidelines should spell the minimum standards for administration
of customary land. The writer observes that a stable customary tenure system is a
source of social security and continuity. Generally, a well-defined and socially
consistent individual land rights can prove to be secure, long-lasting, and in most
cases, inheritable and transferrable. This in turn brings about tenure security and
individuals would invest more in their land.
In order to effectively achieve fair distribution of customary land, the concept of rural
land management boards should be implemented in It therefore follows that abuse of
49

authority can only be reduced when land management boards to look at the alienation
of land under customary tenure are established and supported by the law. These
committees can further look at the applications tendered in and choose prospective
landholders on merit. This would ensure a transparent and accountable customary land
administration in Zambia. The institutions responsible for implementing the various
functions of land policy are currently highly dispersed with inadequate coordination
among ministries.
The Commissioner of Lands must rely on a nearly independent Surveys Department
for surveying and mapping. Decisions on subdivision must come from the Ministry of
Environment. Land use planning appraisals are made by the land use planning section
of the Ministry of Agriculture, while no department has the capacity for conducting
research on land policy. It is too much to expect the various ministries to make quick
decisions in a one-piece fashion. An overhaul of departments responsible for land
policy is needed, with careful attention given to clarifying roles and responsibilities. In
some cases, the establishment of new line departments maybe needed. In other cases,
mergers or consolidation may be justified.
Furthermore, it is important to address the policy and legal framework in light of
improving the land alienation system. Correspondingly, it is equally important that
institutions are reformed and make them more efficient and effective in the alienation
of land. There is therefore an urgent need for a widespread review, harmonisation and
updating of the various land related laws in order to provide a clear regulatory
framework for policy implementation.
From the findings of this paper it is necessary that we reasonably and objectively
appraise current challenges faced in the administration of customary land and the
eminent challenges being projected in both the Land Policy and the Constitution and
whether the common vision of achieving a fair land policy and laws that take into
account the interests of the poor will be attained. Generally, it is important that
whatever path the Government takes they should aim at preserving, protecting and
strengthening the customary land rights and encourage investment in customary areas
aimed at improving the socio economic welfare of our people.
50

In conclusion it is submitted that in order to address the challenges discussed in this
research paper, there is need to come up with the national land policy. The national
Land Policy should provide guidance on how land should be alienated

51

Bibliography

BOOKS
Dale,P., John M.(1999). Land Administration. Oxford: oxford University Press
Dorner P (1972). Land Reform and Economic Development, Penguine book limited;
England
Mudenda F. (2007). Land law in Zambia Lusaka: University of Zambia Press
Mulimbwa, A. C.(1998) Land Policy and Economic Development in Zambia, In
Zambia Law Journal, Special Edition, Lusaka: UNZA Press
Mulolwa A (2002). Intergrated Land Delivery towards improving Land
Administration in Zambia Netherlands: Delft university Press
Mvunga M.(1980) The colonial Foundations of Zambia: Land Tenure System,
National Education of Zambia Limited(NecZam).
Mvunga(1993) Land Law Policy in Zambia, Institute of Zambian studies, University
of Zambia.

PUBLICAIONS /REPORTS
Acquare E. (1984) Principles and issues: Land Tenure and Rural productivity in the
pacific islands. FAO
Adams M (2003) Land tenure policy and practice in Zambia: issues relating to the
development of the Agriculture sector, Draft 2003, mokoro Ltd, oxford.
Bastiann van Loenen(1999) Land Tenure in Zambia, University of Maine
Brown T (2003) Contestations, confusion and corruption: Market-based land reform
and local politics in Zambia.
Bruce (1993) A Review of Tenure Terminology; Land Tenure Center, University of
Wisconsin.

52

PAPER PRESENTATIONS
Hansungule M. (1997) Report on the land tenure insecurity on the copperbelt, Oxfam
GB in Zambia.
MMD(1999) Movement for Multiparty Democracy Manifesto, Lusaka: campaign
committee, MMD
Mudenda (2006) Land Tenure and Boundary Conflicts in Rural Zambia, CASLE
conference paper.

Republic of Zambia (1985) Circular No.1, Procedure on land alienation,
Lusaka: Ministry of Lands.

Republic of Zambia, (2002) Draft land policy document, Lusaka: Ministry
of Lands.
Sichone F. (2010). The System of Land Alienation in Zambia: A critical analysis of
the Legal and Institutional Framework

Zambia Land Alliance(2005) Communities view on Land Policy review booklet,
Lusaka

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