Posted on April 05, 2024

Introduction

Malawi's journey towards effective land governance has been marred by historical injustices rooted in colonial legacies and compounded by contemporary challenges within customary land practices. This article explores the troubled legacy, policy reforms and the persistent issues within Malawi's land laws, shedding light on the intricate balance needed for meaningful change.

Troubling a Troubled Legacy

The land law in Malawi has long been haunted by colonial shadows, perpetuating dispossession of both physical and intangible property attributes. The 1965 Land Act, adopted a year after gaining independence from Britain, ignored the diverse ownership realities, sparking ongoing land debates. Activism with decolonial perspectives, driven by concepts like Ubuntu, has sought to address gaps in land laws and ensure tenure security while preserving heritage and culture.

In 2016, the Malawian Land Act was amended to incorporate indigenous people and customary laws into land management. However, this seemingly progressive step has faced its own set of challenges. Despite the decolonial value of customary laws, inherent injustices persist. Ownership claims are often entangled with discriminatory practices based on marriage systems, be it matrilineal or patrilineal. The very issues the 2022 Land Act (amendment) aimed to redress have resurfaced in a different guise.

Preamble to Reform

The journey towards redefining land governance in Malawi commenced in 1996 with the establishment of the Presidential Commission of Inquiry on Land Policy Reform. The Commission, completing its task in 1999, recommended a national land policy, leading to the birth of the Malawi National Land Policy in 2002. The overarching goal was to ensure tenure security, equitable access to land and foster social and economic development through sustainable land use.

Key Issues in Customary Land

The Customary Land Act (amended) of 2022 emerged from the Malawi National Land Policy of 2002, aiming to establish tenure security and legal land ownership. Customary land, lacking such security before the Act, was susceptible to political economy land grabs, evident in various cases for example in ‘The Political Economy of Land Grabs in Malawi: Investigating the Contribution of Limphasa Sugar Corporation to Rural Development.’ In 2016, the Land Act was amended in which indigenous people and customary laws were incorporated into land management. However, this new law is not one without its own challenges.  Customary laws, despite their decolonial value, are not without inherent injustices. For instance, the claim of ownership to land under customary law is premised on the prevailing customary law of a particular jurisdiction of which some are discriminatory in which ownership and control of land is dependent on the particular marriage system; that is, matrilineal or patrilineal. Thus, the challenges that the Malawian Land Act (amended) of 2022 sought to redress have only reappeared in a new fashion.

While the Act allows for the creation of Customary Estates, concerns remain regarding potential land grabbers among wealthy indigenous Malawians. Institutional reforms alone have proven insufficient to address land tenure insecurities and corruption concerns. The influence of various stakeholders, including politicians, rich individuals, traditional leaders, and investors, poses challenges in eliminating conflicts related to land resources. Despite apparent measures restricting land purchases by foreigners, caution is warranted, as wealthy Malawians may exploit customary estates at the expense of the less privileged.

Women and Children's Rights in Customary Land

An often-overlooked dimension of the land discourse in Malawi revolves around women's and children's rights. Customary laws, discriminatory in nature, tie women's land ownership to the prevailing marriage system, whether matrilineal or patrilineal. While women may own land in matrilineal setups, patriarchal hierarchies persist, with clan leaders conspiring to dispose of land parcels. In patrilineal systems, women do not own land, facing potential property loss, including land, upon their husband's death.

Conclusion: Striking a Delicate Balance

In the quest for effective land governance in Malawi, it is imperative to consider both historical and contemporary factors. Meaningful land laws must address the root causes of injustices perpetuated by colonial legacies and discriminatory customary practices. Striking a balance between decolonisation and preservation of cultural heritage is crucial for fostering social justice and equality in the realm of land laws. As Malawi navigates this intricate landscape, a thoughtful and inclusive approach is essential to ensure a fair and secure future for all its citizens.