THE UNIVERSITY OF MALAWI

SCHOOL OF LAW, ECONOMICS, AND GOVERNANCE.

DEPARTMENT OF PRIVATE LAW

TO : DR. KAMBILI

FROM : LAW/ME/15/20

COURSE TITLE : LAND LAW II

COURSE CODE : LLB 222

TASK : THE LAND ACTS AND CUSTOMARY ESTATES

DUE DATE : 5TH APRIL, 2024

INTRODUCTION

Land grabbing has been described as the situation where customary land is acquired by
powerful entities without proper consent or compensation for local communities and this has
been a significant issue in Malawi.1 In an attempt to address this challenge, the Malawian
government enacted the Land Act and Customary Land Act in 2016, which introduced the
concept of a customary estate aimed at formalising and protecting individuals interests in
customary land. This essay will analyse the extent to which the customary estate provision
can effectively safeguard citizens against exploitative land grabs under the Land Act and
Customary Land Act of 2016 and also taking into account the related amendments.

WHAT IS A CUSTOMARY ESTATE

The Customary Land Act recognises customary estates as a form of land tenure, which grants
communities the legal right to their customary land. 2 This provides a level of protection
against arbitrary dispossession or acquisition of customary land by large-scale agricultural
estates or other entities without proper consultation and compensation. The Act also
establishes procedures for the demarcation and registration of customary estates, which could
potentially provide greater clarity and documentation of land boundaries and ownership.

Customary land tenure can be understood as a social system and as a legal code, which can be
referred to as the de facto situation, constituting the communally accepted rule that one has to
follow for access to land, land use rights, and other interests 3. The formalisation of customary
estates aims to reinforce these traditionally-held rights and practices within a statutory
framework.

WHAT IS THE FORM OF LAND GRABBING REFERRED TO BY BAE, YUH-JIN

Land grabbing in Malawi can be summarised as a situation in which traditional authorities in

sell customary land to people or companies and allow it to become private land in the
process.4 This is possible because under section 4 of the Customary Land Act introduces the
land committees in which according to section 5(2)(a) the Group Village Headman is the
chairperson of the committee as such making the customary lands under their control, with
the backing of the Government. At a larger scale, much controversy also revolves around

1
Bae, Y.-J. Analyzing the Changes of the Meaning of Customary Land in the Context of Land Grabbing in Malawi. Land
2021, 10, 836. https://doi.org/10.3390/ land10080836
2
Section 2 of the Land Act, 2016
3
Ibid 1
4
Ibid
traditional authorities selling customary land to those from outside the community, typically
allowing it to become private land in the process. Frequently it has been reported that chiefs
do not reflect the will of the community by mishandling their duties over customary land in
exchange for private gain, such as giving land to family, friends or those who bribe them
rather than following community interests, and indeed residents of the land in question
typically do not receive compensation for loss of land.5

HOW HAVE THE CUSTOMARY LAND ACT AND THE LAND ACT ENSURED
THAT THE RIGHTS OF THE CITIZENS ARE SECURED AGAINST LAND
GRABBING

The Customary Land Act has several provisions that aim to protect against land grabbing of
customary estates. To begin with, the new Land Acts promote individual land rights by
offering the chance to apply for customary estates 6. According to Section 20(1) of the
Customary Land (Amendment Act) of 2022, a customary estate shall only be granted to an
indigenous Malawian thereby preventing individuals that are not from the community from
acquiring customary estates. The requirement that customary estates can only be allocated by
a land committee as according to section 21(3) of the Customary Land Act helps in the
prevention of arbitrary or unlawful allocation of land by individuals or entities without proper
authority. It also provides poor farmers with opportunities to strengthen land rights, thereby
encouraging investment in land improvement.

Secondly, the Land Acts have brought in ways in which the land ownership can be
formalised. Section 21 of the Customary Land Act lays out a detailed application process,
including use of prescribed forms, signatures/markings, and fees, thereby creating a
transparent paper trail for land allocation. This is because there was lack of transparency and
efficacy in the formal land management process and left the system ripe for a range of abuses.
Bae Yun argues that the lack of transparency and consultation with communities in leasing
customary land is one of the leading factors for land grabbing, especially for large-scale
agriculture projects like sugar plantations in the district of Chikwawa and the Nkhotakota
district.7

5
Chinsinga, B. (2011), The politics of land reforms in Malawi: the case of the Community Based Rural Land Development
Programme (CBRLDP). Journal of International Development, 23, 380–393
6
Section 21(1) of the Customary Land Act
7
Bae, Y.-J. Analyzing the Changes of the Meaning of Customary Land in the Context of Land Grabbing in Malawi. Land
2021, 10, 836. https://doi.org/10.3390/ land10080836
Furthermore, Section 22(2) requires land committees to adhere to prior adjudication decisions
on boundaries and existing rights when allocating customary estates, preventing reallocation
of already demarcated/allocated land. This in turn is there to ensure that the Land committees
are not bias in the allocation of the land as one of the most common ways of land grabbing
has been through the traditional authorities selling customary land to outsiders without
following the procedure who would then convert them into private land. For example,
Madisi Masjid Kadria Asum v Mwachibe Family 8 where Madisi Masjid Kadria (ASUM)
claimed to have bought the land from the Madisi community and constructed a
mosque without following the right procedure.

The need for equality when it comes to the allocation of the land. Section 22(2)(c) mandates
land committees to treat all applicants equally, preventing discrimination against women,
persons with disabilities, or other groups vulnerable to land grabbing. This provision aims to
address the challenges arising from the practice of the land allocation committee of
demarcating and granting titles only to extended patrilineal family units based on the existing
Tumbuka customary system, and only to matrilineal family units in the Chewa system,
thereby excluding other groups from accessing land rights. 9 The lack of formal, documented
land titles can perpetuate the risk of land grabbing as the lack of independent titles makes
women or persons with disabilities more vulnerable to dispossession and less able to stake
claim to their share after widowhood, divorce or displacement. Consequently, this provision
enhances equal treatment and non-discrimination thereby promoting the security of land
tenure for vulnerable holders against the threats of land grabbing.

Lastly, Section 17 of the Land Act requires the Minister to serve notice to the traditional
authority when acquiring unallocated customary land for public utility purposes. 10 The notice
requirement to traditional authorities ensures they are informed and can represent the interests
of the customary land holders. It also provides for payment of compensation to individuals
who suffer disturbance, loss or damage due to such acquisition. 11 Section 19 allows for the
registration of customary land as private land under the Registered Land Act, thereby
conferring greater security of tenure. Allowing customary land to be registered as private land
gives the holders increased security of tenure, as their ownership rights are formally

8
Madisi Masjid Kadria Asum v Mwachibe Family (Civil Appeal Cause 40 of 2018) [2021] MWHC 198
9
Clement Ng'ong'ola the Design and Implementation of Customary Land Reforms in Central Malawi. Journal of African
Law, Vol. 26, No. 2 (Autumn, 1982), pp. 115-132
10
Section 17 of the Land Act, 2016
11
Section 18 of the Land Act, 2016
recognised. This prevents arbitrary encroachment or acquisition of the customary land
without the consent of the rightful customary land holders

CHALLENGES FACED UNDER THE CUSTOMARY LAND ACT

Part VII of the Customary Land Act establishes a system of land tribunals to resolve disputes
over customary land, providing avenues to contest improper land allocations. This court in
Msuku v Manesi, Maganga12 acknowledged these provisions in deciding the customary land
matter dispute in the case. The Court stated that the High Court is not mandated to deal with
customary land disputes at first instance under the Customary Land Act, 2016.

Section 44 of the Customary Land Act requires the establishment of customary land tribunals
in every Traditional Land Management Area to adjudicate disputes concerning customary
land.13 The establishment of customary land tribunals, as outlined in Section 44, is a very
good initiative in ensuring security for landholders in Traditional Land Management Areas.
These tribunals allow for the resolution of disputes by individuals familiar with local
customs, traditions, and land laws, promoting culturally sensitive and context-specific
decisions

However, the operationalisation of these tribunals has faced resistance from communities,
and only a few districts, such as the lower Shire districts, have managed to set up these
tribunals.14 The lack of land management tribunals has led to the absence of a proper
procedure for settling disputes, as the High Court is not the court of first instance for
customary land matters, leaving landholders without effective remedies.

From a broader perspective, it can be argued that the lack of land administrative structures
has affected access to justice and the effective implementation of the Act. It can also be
suggested that the establishment of these tribunals could be perceived as a modern form of
land grabbing because as it stands individuals do not have actual security over their rights due
to the absence of these tribunals. Additionally, the law seems to be giving with one hand and
taking with the other, creating a situation where landholders lack proper channels for
resolving disputes.

All in all, the lack of operationalised customary land tribunals has had a significant impact on
the effective implementation of the Customary Land Act, Land Act and the protection of the

12
Msuku v Manesi, Maganga, Maganga and Persons unknown (Civil Cause 204 of 2021) [2022]
13
Section 44 of the Customary Land Act, 2016
14
Lobi v Village Headman Kagwera (Land Cause 213 of 2022)
rights of the indigenous Malawians in Traditional Land Management Areas. Addressing this
issue and ensuring the proper functioning of these tribunals is crucial for securing the rights
of customary estate holders against land grabbing.

BIBLIOGRAPHY

STATUTES

The Customary Land Act, 2016

The Land Act

The Customary Amendment Act, 2022

CASES

Madisi Masjid Kadria Asum v Mwachibe Family (Civil Appeal Cause 40 of 2018) [2021]
MWHC 198

Msuku v Manesi, Maganga, Maganga and Persons unknown (Civil Cause 204 of 2021)
[2022]

Lobi v Village Headman Kagwera (Land Cause 213 of 2022)

BOOKS AND ARTICLES

Bae, Y.-J. Analyzing the Changes of the Meaning of Customary Land in the Context of Land
Grabbing in Malawi. Land 2021, 10, 836. https://doi.org/10.3390/ land10080836

Chinsinga, B. (2011), The politics of land reforms in Malawi: the case of the Community
Based Rural Land Development Programme (CBRLDP). Journal of International
Development, 23, 380–393

Clement Ng'ong'ola the Design and Implementation of Customary Land Reforms in Central
Malawi. Journal of African Law, Vol. 26, No. 2 (Autumn, 1982), pp. 115-132

Holden, S., R. Kaarhus and R. Lunduka (2006), Land policy reform: the role of land markets
and women’s land rights in Malawi. Noragric Report No. 36

Mwakasungula, U. (2009), Land access, distribution and the role of parliament in fostering
land justice. Mimeo.