Malawi’s Constitution recognises property as one of the fundamental human rights.

1 Land is
one of the objects of property. 2 It is an asset of immeasurable economic value. 3 Perhaps, given its
vitalness, land has been a cause of so many rifts throughout history. Narrowing down to Malawi,
there are many problems associated with access to and acquiring land. It is averred, for instance,
that the best and vast pieces of land were owned by white settlers. 4 This left the natives relegated
only to small pieces of land most of which were barren and largely inhabitable. In bid to address
some of these problems, the Legislature enacted the Land Act, among other pieces of
registration, a precursor of which was the Malawi National Land Policy of 2002. The policy
sought to not only formally identify the problems associated with land but also find [practical]
solutions to address them. Invariably, the enactment of the 2016 Land Act aimed at providing a
comprehensive legal framework to make provisions for land in Malawi. In 2022, a number of
amendments were effected to the Land Act in order to speak to the existing land problems. This
paper, in particular, is a position paper on whether or not the Land (Amendment) Act of 2022 has
addressed at least any one problem of land which were itemized in the 2002 Malawi National
Land Policy.

Considering the Malawi National Land Policy of 2002 and the problems identified therein, and
juxtaposing it with the Land (Amendment) Act of 2022, we take the position that the latter does
indeed address not just one but several of land problems as identified in the former. We shall then
proceed to demonstrate why this is our position.

One of the problems that were identified by the Malawi Land Policy of 2002 was high
population to land ratio.5 True as of that time, the population was at 9.8 million. 6 The population
density was 105 persons per square kilometers on average. Additionally, the population was
growing at a steady rate of 1.9%. Presently, however, Malawi’s population is at 20.9 million. 7
This represents a 2.58% increase from 2022. 8 From these statistics, it can be observed that
population has increased significantly since 2002. Paradoxically, the land area has remained the
1

5
Malawi Government, Malawi National Land Policy of 2002 (2002)
6

8
Macrotrends (2023) retried from https://www.macrotrends.net/countries/MWI/malawi/population#:~:text=The
%20current%20population%20of%20Malawi,a%202.7%25%20increase%20from%202019. On 16th December, 2023
same of which about 42% is arable.9 Based on the foregoing facts, it can be concluded that the
problem of high population to land ratio, as identified in the Malawi National Land Policy, has
exacerbated. In an effort to address this problem, the Land (Amendment) Act 2022 provides in its
5th Amendment by inserting section 9A in the Principal Land Act. Under section 9A (1), it
provides that everyone shall have an access to land based on their means. This provision makes
complete sense in solving this problem when read together with section 9A (2)(3) which provide
that the government shall ensure that land is not concentrated in a few individuals and that the
minister shall set land ceilings to limit how much land interests one can acquire, respectively.
These provisions, taken together, speak to the fact that with the current high population,
population to land ratio is also several times higher than it was two decades ago. Therefore, by
making the gateway of access to land open to everyone and that such an access should not be at
the deprivation of another individual by setting ceilings to how much land interests each
individual can acquire, it tries to address the problem identified above. This is all the more
valuable since land is an essential economic resource as established in National Land Policy of
2002.10

A critical look at section 9(A) as a whole reveals the fact that the same provisions also address
other problems that were identified in the Malawi National Land Policy of 2002. For instance, it
was recognized that some of the problems that Malawi is facing is largely associated with the
residual effects of the colonial land policy. 11 In that colonial policy, settlements were such that
white farmers allocated to themselves the best and most fertile land. Most of these vast pieces of
land were turned into estates especially in the Southern Region of Malawi. Consequently, a
majority of native Malawians were confined to small and often barren lands. The advent, thus, of
section 9(A)(2), for example, that prevents land to be concentrated in the hands of few
individuals tries to rectify that colonial problem. This, in effect, will lessen pressure on the
available land, albeit, limited. Ultimately, that would lead to addressing yet another problem that
was identified in the Malawi National Land Policy which is worsening pressure on land. In the
policy it was indicated that as a result of this skyrocketing pressure on land, it has led to
insecurity to land tenure. Attempts were made of course to consolidate access rights to land both

9
Trading Economics (2023) retrieved from https://tradingeconomics.com/malawi/arable-land-percent-of-land-
area-wb on 16th December, 2023
10

11
physically and legally. What this means is that the Land Amendment Act seeks to strengthen the
land tenure of legal or equitable owners of land.

Provocative squatting was another problem that was identified in the Malawi National Land
Policy. It was averred that “squatting in gazetted forests, national parks, on private land and other
protected areas in land pressure districts, has become frequent and sometimes violent.” 12
Squatting refers to an illegal occupation of a premise or designated places. In Malawi this is
usually the case because of perennial bottlenecks faced by individuals in accessing land. These
challenges are due to several other intersecting issues. Some of them have already been
discussed above. In order to solve the problem of illegal settlement, section 9 of the Land
Amendment Act 2022 provides for an insertion in the Principal Act of section 20A which
provides for land eviction orders. In particular, section 20A(1) provides that:

Notwithstanding section 45, the Minister or a local government authority may issue a
land eviction order against any person who uses or occupies any public land without a
valid grant, lease or disposition issued under any written law.

In the above section, one key term that needs to be defined is ‘public land’. Recourse, then, be
had to section 2 of Land Act 2016. As per the said section, public land “is land held in trust for
the people of Malawi by the Government, a local government authority or a traditional
authority.” According to section 2(c) of same act, public land is said to include: “Land gazette
for national parks, recreation areas, forest reserves, conservation areas, historic and cultural
sites.” Thus, the eviction order provided for in section 20A(1) is meant to stop further use and
continued occupation of squatters. It can be concluded at this point then that the Land
Amendment Act 2022 specifically as demonstrated by section 20A(1) tries to address the
problem of provocative squatting.

Last but not least, section 6 of Land Amendment Act of 2022 provides for the amendment of
section 11 of the Principal Land Act. It inserts two additional sections: 3 and 4. These are as
reproduced below:

“(3) Land for investment allocated by the Malawi Investment and Trade Centre
Limited shall be withdrawn if it is not developed within two years of the allocation.

12
 (4) Any underdeveloped plots shall be subdivided in accordance with the Physical
Planning Act and may be reallocated.”

These provisions, in our assessment, try to solve the problem of mismanagement of land
development by allowing the Minister to withdraw an interest in land granted to an investor if the
land is not developed within 2 years under section 11(3); and subdividing underdeveloped plots
in accordance with the Physical Planning Act under section 11(4). We think these subsections are
an attempt to solve the problem of mismanagement of land because it contains two key elements
under it which are directly addressed by the provisions. These elements of mismanagement are
underutilization of land and unplanned or unregulated buildings in urban settlements. Land is
said to be underutilized when less is done on with/on it than its actual value. Interestingly, this is
common in Malawi. Plots are bought, even in most strategic places such as inner cities, but are
left idle for several years even decades. Sometimes, it involves constructing poorly designed
buildings not fit for the place. Thus, the insertion of subsections (3) and (4) under section 11, the
Land Amendment Act 2022 tries to curb this problem by empowering the Minister to either
withdraw interest in land or subdivide the underdeveloped plots in line with the guidelines of the
Physical Planning Act. These efforts are to spur urgency among those who buy interests in land
so that they put the land to its right use and not control a resource which they have a luxury of
merely keeping it unused.

In conclusion….