CHAPTER ELEVEN

HISTORICAL BACKGROUND OF THE LAND TENURE SYSTEM IN

ZAMBIA

11.0 Introduction

This chapter gives a brief historical account of the development of the land
tenure system in Zambia from the time of the British South African
Company (BSA Co) rule, up to the first Republic (1964-72). 1 Before the
advent of colonialism in Northern Rhodesia, as Zambia was then known,
all land in the territory was administered in accordance with African
Customary Law. The customary land tenure system regulated the manner
and ways in which the indigenous peoples could acquire, exercise and
enjoy rights in land.

In 1889, North Western Rhodesia and North Eastern Rhodesia

protectorates were created under the provisions of the 1889 North
Western and North Eastern Rhodesia Orders in Council. On 29 th October,
1889 the BSA Co. was incorporated under a Royal Charter 2. Under the
Charter the Company was, inter alia, entrusted with the administration of
the two territories. The Company was authorized and empowered to
make treaties with local peoples North of the Zambezi River and to make
land grants. The Company was also empowered under the Charter, to
carry out mining activities and to make concessions for mining and other
rights. The Company’s right to rule the territory was derived from two
sources: viz, the Royal Charter of Incorporation of the BSA Co and the two
Orders in Council enacted for the two territories namely - the 1889 North
Western Rhodesia Order in Council and North Eastern Rhodesia Order in
Council.

11.1 The Lewanika Concessions – North Western Rhodesia

During the period 1900 – 1909, the BSA Co. obtained, inter alia, land
concessions from the Litunga Lubosi Lewanika, King of the Lozi people. 3
The extent of these land concessions was claimed to have included the
present day Southern Province. These concessions generally granted
various rights to the Company including the right to search and prospect

1
For a detailed Account of the development of the Land tenure System of Zambia from 1924 to 1964, See
Mvunga, M.P.“The Colonial Foundations of Zambia’s Land Tenure System,” Lusaka: NECZAM
Zambia Limited, 1980.
2
Royal Charter of incorporation of the British South Africa Company, 29th October,1889.
3
Ruler from 1886-1916.

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 for minerals in the whole territory of Barotse, including all subject and
dependant territories.
The last concessions granted to the Company in 1909, granted land rights
throughout Lewanika’s territory except in Barotseland proper itself. The
BSA Co proceeded to alienate and administer the land on the basis of
these concessions. The Company promised Lewanika British protection
from outside invasions, payment of mineral royalties, guns, e,t,c.4

11.2 The North Eastern Rhodesia Concessions

North Eastern Rhodesia was also acquired by the BSA Co through

concessions entered between it, through its emissaries, and the local
chiefs. In general, the chiefs accepted the British flag, placed themselves
under the protection of the Queen and granted the Company the sole right
to search and prospect for minerals5.

11.3 British South Africa Company’s Claims to Ownership Of Land

The 1889 Orders in Council [Northwestern and Northeastern Rhodesia

Order in Council] and the 1911 Northern Rhodesia Order in Council
contained no provision vesting land in the Company although the
Company claimed ownership of the land in the two territories. The
Company asserted a right to the ownership of land and the minerals
throughout Northern Rhodesia on the basis of the concessions entered
into between it through its emissaries and the African chiefs. The claims to
ownership of land and minerals by virtue of the concessions or treaties
entered between local Chiefs and the Company have been questioned and
challenged.6
The other claim to land by the Company was said to be by virtue of
declaration of protectorate status.
The view that declaration of protectorate status meant ownership of land
was translated into local law in the Nyasaland protectorate by Judge
Nunan, the chief Judicial officer, in the cases of Cox vs African Lakes
Corporation (A.L.C) and Pettit Vs African Lakes Corporation, otherwise
known as the Kombe cases.7 The central issue in both cases was the
validity of an agreement dated 2nd August 1900 by which one chief,
William, granted a monopoly for the collection of strophantus seeds
(Kombe), in his territory to the defendant, the A.L.C. Judge Nunan held
4
Muna Ndulo, mining rights in zambia, Kenneth Kaunda Foundation, Lusaka, 1987, p.25
5
Ibid at pp 31-36.
6
Ibid, see Chapter 3 entitled “ Challenges to the British South Africa Company Claims.” Pages 37-76, See
also Mvunga,M,P, supra note 1 at p 36-37. The challenges are mainly on the grounds of lack of
capacity on the part of the chiefs or kings to do what they did and lack of consent in that they did not
understand what they signed for.
7
See Clement Ng’ongola, “The Political Economy of Land in Nyasaland” in Africa Social Research
Journal, Number 36, University of Zambia Institute For African Studies, pages 498-499.

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 that the agreement was invalid for want of consideration. He also held
that the agreement was ultra-vires chief William. He was no longer ‘the
landlord of the land over which he was Chief, the legal ownership having passed
with Sovereign rights to the Sovereign of Great Britain…’ by treaties signed by
his predecessor. Judge Nunan held that the chief could no longer dispose
of land, easements or profits a’ prendre without the consent of his Majesty’s
Commissioner. According to Nunan the chiefs in the Nyasaland
protectorate had practically lost their influence to the Commissioner upon
the establishment of Colonial rule.
The view that protectorate status meant title to land was rejected by the
Privy Council8 in Re Southern Rhodesia.9 The issue at stake was to
establish who among the crown, the BSA Co. and the natives, was the
owner of the vacant and unalienated lands of Southern Rhodesia. It was
held that a proclamation of annexation was not essential to constitute the
Crown owner of the territory as completely as any sovereign can be owner
of lands public Juris, and further that a manifestation of the Crown’s
intention to that effect by Orders in Council dealing with the lands and
their administration was sufficient for the purpose. In other words, the
Crown could only establish ownership of the land by an express
indication to create crown land by an Order in Council. The case is
excerpted below.

Re SOUTHERN RHODESIA [1919] A.C 211 – [Privy Council]

LORD SUMNER [at page 229] …on April 17, 1914, the Legislative Council of Southern Rhodesia
passed a resolution as follows:
“(1) That the ownership of the unalienated land in Southern Rhodesia is not vested in, and has
never been acquired by, the British South Africa Company as their commercial or private property,
and that such powers of taking possession of, dealing with or disposing of land in Southern
Rhodesia as have been or are possessed by the British South Africa Company have been created
by virtue of authority conferred by Her Majesty the Queen in Council and her successors upon the
Company, as the governing body charged for the time being by Her Majesty in Council and her
successors with the general administration of affairs within the said territory and responsible for the
maintenance of law, order, and good government therein:

“(2) That if by the exercise of the said powers and the taking possession of, dealing with and
disposing of the said land or by any other means, the British South Africa Company have acquired
an ownership of the said land, such ownership is so vested in them as an administrative and public
asset only, and the Company in their capacity other than a Government and Administration have
no dominion or estate in or title to the said lands or to any moneys or revenues derived therefrom.

“(3.) That on the said Company ceasing to be the Government of the said territory, and ceasing to
exercise the administration of affairs therein, all such lands as may be unalienated at such time
shall be and remain the property of the Government of the said territory which shall take the place
of the said Company, and the possession and administration of such land shall pass to such
Government as public domain.”
8
The Privy Council was the highest apellate Court for the Protectorates and colonies under the British
Empire.
9
[1919] A.C 211.

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These contentions were disputed by the British South Africa Company, and by Order in Council,
dated July 16, 1914, His Majesty was graciously pleased to refer to this Board for hearing and
consideration of the question “whether the contentions put forward in the said resolution of April 17,
1914, are well founded ?”‘…by the disinterested liberality of persons in this country their Lordships
had the advantage of hearing the case for the natives who were themselves incapable of urging,
and perhaps unconscious of possessing, any case at all. Undoubtedly this inquiry has thereby
been rendered more complete. Although negative in form, since their case in answer to the
questions mentioned in the order of reference was primarily that the unalienated lands were the
property neither of the Crown nor of the Company, in substance their case was that they were the
owners of the unalienated lands long before either the Company or the Crown became concerned
with them and from time immemorial, that their title could not be divested without legislation, which
had never been passed, or their own consent, which had never been given, and that the
unalienated lands belonged to them still. Hence, if the Company had any title at all, which was
denied, it was only the title of a trustee, the beneficial interest remaining in the natives and the legal
title and right to possession reverting to them whenever the Company ceases to govern the
country.

According to the argument, the natives before 1893 were owners of the whole of these vast regions
in such a sense that, without their permission or that of their King and trustee, no traveler, still less
a settler, could so much as enter without committing a trespass. If so, the maintenance of their
rights was fatally inconsistent with white settlement of the country, and yet white settlement was
the object of the whole forward movement, pioneered by the Company and controlled by the
Crown, and that object was successfully accomplished, with the result that the aboriginal system
gave place to another prescribed by the Order in Council.

This fact makes further inquiry into the nature of the native rights unnecessary. If they were not in
the nature of private rights, they were at the disposal of the Crown when Lobengula fled and his
dominions were conquered; if they were, any actual disposition of them by the Crown upon a
conquest, whether immediately in 1894 or four years later, would suffice to extinguish them as
manifesting an intention expressly to exercise the right to do so. The Matabeleland Order in
Council of 1894 and the Southern Rhodesia Order in Council of 1898 provided for native reserves,
within which the tribal life of the natives might be continued under protection and control, and to the
rest of the country the Company’s officers and white men were admitted independently of any
consent of the natives. The Company’s alienations by grant are unquestionably valid, yet the
natives have no share in them. The ownership of the reserves was, at least administratively, vested
in the Company under the Southern Rhodesian Native Regulations promulgated by the High
Commissioner in 1898, and with the consent of the Crown other dispositions of those reserves can
be made by the Company from time to time. By the will of the Crown and in exercise of its rights,
the old state of things, whatever its exact nature, as it was before 1893, has passed away and
another and, as their Lordships do not doubt, a better has been established in lieu of it. Whoever
now owns the unalienated lands, the natives do not.

Like the natives, the Company desired to find a title which would ante-date the conquest of
Lobengula in 1893 and would confer such prior rights in property, or rights equivalent to property,
in the unalienated lands as would be classed among the private rights which a conqueror is
deemed to respect, unless by appropriate action or legislation he expressly affects them. For ten
years after 1893 the Lippert concession is little heard of, but it was a grant from Lobengula while he
was still sovereign of the country, and it referred to the lands generally. Accordingly it formed a
part, and not an unimportant part, of the Company’s case.
The Lippert concession was not one of those public acts by which one independent sovereign,
however humble, enters into political relations with the agents of another. Instruments of that
character have been common enough in the history of the British Empire. They derive their juridical
character from their recognition and adoption by the Crown, and in interpreting them it must be
borne in mind that they are State documents. The Lippert concession is not of this character. Like
the Rudd concession, it received the approval of the High Commissioner on behalf of the Crown,

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but it is essentially a private contract though entered into by the concessionaire with the paramount
chief, and, like other legal documents, its effect must depend upon the construction of its terms
according to ordinary legal rules. It is, indeed, of importance to the Company’s case largely
because it confers private rights, and is not in any sense a mere public act or act of State. Private
concessions of large extent and of ambitious character, when obtained by white financiers from
untutored aborigines, are generally and justly objects of close scrutiny, but their Lordships are
relieved from the duty of inquiring into the circumstances under which this grant was made by the
fact that competent officials reported to the High Commissioner, after making full inquiry under his
direction, that the concession had been properly obtained and that its terms correctly expressed
Lobengula’s intentions and exactly reflected his understanding of the matter………..their Lordships
think that the real question is, what does the Lippert Concession say. Thus read, it is plain that the
concession did not give the concessionaire the right to use the land or to take the usufruct.
It did not make any land his, nor did it enable him to make it his own. What land he appropriated to
others was to be appropriated in Lobengula’s name. There were no words of conveyance—no
estate or interest in land was vested in Herr Lippert. The concession was at most a personal
contract. If it bound Lobengula’s successors, they were such successors only as came to his
throne under his title, and not successors to his sovereignty who came to it by right of the sword, if
Lobengula broke the contract or revoked the concession, Herr Lippert’s claim was a personal one,
and was not supported by any right in or to the land. The Company, indeed, never acted under the
concession. Its grants were not made in Lobengula’s name, nor did it pay the annual douceur,
upon which the rights under it were conditional, The consequences of the construction which the
Company puts on the document would indeed be extreme, It would follow that Herr Lippert was, or
could become at pleasure, owner of the entire kingdom—for nothing is reserved in favour of the
inhabitants—from the kraals of the King’s wives to his father’s grave or the scene of assembly of
his indunas and his pitso. Thence- forward the entire tribe were sojourners on sufferance where
they had ranged in arms, dependent on the good nature of this stranger from Johannesburg even
for gardens in which to grow their mealies and pastures on which to graze their cattle.

The Lippert concession may have some value as helping to explain how and why the Crown came
to confer the administration of Southern Rhodesia upon the Company, but as a title deed to the
unalienated lands, it is valueless. Accordingly it becomes unnecessary to consider either the
powers of Lobengula to dispose of tribal lands or the effect of the approval and recognition of the
concession by the Crown and of the occupation which it is suggested that the Company enjoyed
under it. The Crown recognized the concession for what it might be worth on its true interpretation,
and the Company’s occupation, whatever it rested on, did not rest on the Lippert concession.
Recognition could give no title where none existed already. It is true that sundry speeches to
shareholders, wise and otherwise, were quoted in which the Company claimed to own the whole
country, though the Lippert concession was but little relied on and but rarely mentioned; but,
though these were sent to the Colonial Office, it is not shown that they were or ought to have been
read there, or that, if they were read, the Crown was bound to take any notice of these domestic
matters.

In default of the Lippert concession, the Company places great reliance on occupation long
standing and undisturbed. It is true that the period required for a title by prescription under Roman-
Dutch law, which has been applied to Southern Rhodesia, has not yet elapsed, and that the
Company’s possession has not been held adversely to the Crown. Laying aside the language of
directors’ speeches and the form of the Company’s accounts because of their ambiguity, no one
can say that its possession is not at least as referable to the administrative position which it held
under the Crown as to an enjoyment independent of the Crown, or that it is inconsistent with the
recognition of the Crown’s overriding title. The fact of occupation is, however, relied on in various
ways. It commenced, at any rate in Mashonaland, before 1893. The Company does not (nor could
it do so) assert a conquest for its own benefit, but it says that, enjoying certain rights under its
charter, it occupied extensive tracts of country without objection from Lobengula during his reign,
and then, after his flight and on a still larger scale, it took to itself the disposal of a masterless land,
now left vacant for the first comer who should prove strong enough to hold what he took. Thence-
forward, with the recognition of the Crown, or at least without its dissent, the Company claims that

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 it did openly all that an owner could do, and enjoyed every advantage that ownership could have
given, conveying land in its own name to grantees of its own choice, fixing the price and applying
the purchase- money as it saw fit, and consistently doing what only an owner ought to do, under
the very eyes of the Crown, and in a manner which cannot be reconciled with any title outstanding
in the Crown. Thus, if the Crown did not give the land into the Company’s hands, yet it was content
to leave in the Company’s hands all that it found there. The word estoppel “ was not, indeed, used,
but the Company did not scruple to suggest that, if after all its expenditure in Southern Rhodesia,
incurred in the belief that it was undisputed owner of the unalienated lands, the Crown succeeds in
asserting a competing title, then it has not been fairly dealt with.

The questions in this reference refer to property and not to mere occupation. This must never be
lost sight of. The charter simply gave capacity to own and to grant land, but in itself it granted none.
It used, indeed, the expression “ the Company’s territories,” but this referred to the area within
which those capacities might be exercised, and did not amount to an anticipatory grant by the
Crown of land which in 1889 was not the Crown’s to bestow. The fact of occupation and especially
the circumstances under which it was taken and enjoyed are significant and helpful in estimating
what the rights of the Crown were and how far, if at all, the Crown conferred rights over the land on
the Company; but in itself and by itself occupation is not title.

The Crown does not claim to have annexed Matabeleland and Mashonaland. No Proclamation of
annexation has ever been issued. Accordingly the Company contends that for want of it these
regions have never belonged to the Crown, but that it has deliberately disinterested itself in regard
to their ownership, and the conclusion suggested is that, if no one has now a better title than the
Company, the inchoate title consisting of occupation is for present purposes property enough.

No doubt a Proclamation annexing a conquered territory is a well-understood mode in which a

conquering Power announces its will urbi et orbi. It has all the advantages (and the disadvantages)
of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more
indispensable than is a declaration of war at the commencement of hostilities. As between State
and State special authority may attach to this formal manner of announcing the exercise of
sovereign rights, but the present question does not arise between State and State. It is one
between sovereign and subject. The Crown has not assented to any legislative act by which the
declaration of its will has been restricted to one definite form or confined within particular limits of
ceremonial or occasion……..one thing is most notable. Nowhere is there any express grant of the
unalienated lands by the Crown to the Company. The hypothesis that the Crown settled the lands,
by conveying to the Company in trust to sell them and apply the proceeds to the necessities of
administration, need not be considered. Not only is there no declaration of any such trust, no
beneficiary named and no trust indicated, but there is no conveyance at all.

Their Lordships will humbly report to His Majesty that they affirm the first paragraph of the
resolution passed on April 17, 1914 (1), and deny the third, and that as to the second they say that,
so long as British South Africa Company continues to administer Southern Rhodesia under the
Crown, it is entitled to dispose of the unalienated lands in due course of administration, and to
apply the moneys or revenues derived therefrom in duly reimbursing all proper outlays on
administrative account in the current or in past years, and if its administration of Southern
Rhodesia should he determined by the Crown, then the right to look to the Crown to secure to it
(either out of the proceeds of further sales of the lands by whomsoever made, or, if the Crown
should grant away these lands or proceeds to others, from public funds) the due reimbursement of
any outstanding balance of aggregated advances made by it for necessary and proper expenditure
upon the administration of Southern Rhodesia. This, however, and the other rights hereinbefore
mentioned do not vest in it dominium or estate in or title to the said unalienated lands.

In Sobhuza Vs Miller and others,10 a challenge to an Order in Council

which expropriated the natives land in Swaziland was unsuccessful. In
10
[1926] 2 AC 516.

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this case unlike in re: Southern Rhodesia, there was an Order in Council
which expropriated to the crown land of the indigenous peoples of
Swaziland. It was held, following the decision in re: Southern Rhodesia
case, that the Order in Council was effective as there was an express
indication by or through the Order in Council by the Crown to create
Crown land and that an extension of the British Jurisdiction in a British
protectorate by orders in Council was an exercise of power by an act of
state unchallenged in any British court. The case is excerpted below.

SOBHUZA II Vs MILLER AND OTHERS [1926] 2 A.C 518 – [PC]

The appellant, who was paramount chief of Swaziland, presented a petition to the Special Court of
Swaziland, on behalf of himself and the chiefs and natives of Swaziland; he claimed an order ejecting the
respondents from certain land belonging to that country, a declaration of rights, and an injunction. The
petition called in question the validity of certain Orders in Council, and proclamations and grants of land
made thereunder. -The special court of Swaziland dismissed the petition…
VISCOUNT HALDANE- This is an appeal from a judgment of the Special Court of Swaziland, by which a
petition of the appellant has been dismissed with costs. The petition was presented against the first
respondent, and the second respondents were added at the trial on the footing that they claimed to own the
land in controversy and that the first respondent was acting as their manager. The substance of the petition
was that certain lands, known as Farm 188, formed part of an area originally subject to a concession known
as the “unnallotted Lands Concession,” granted by the former King of the Swazis, Umbandine, on July 26,
1889. Under this concession the grantees bound themselves to respect all prior rights, and, further, in no way
to interfere with the rights 0f the native subjects of the grantor. The concession of 1889 was expressed to
have been made by the King with the advice and consent of his Indunas in Council in favour of two persons,
Thorburn and Watkins, of exclusive grazing, and to have conferred agricultural and planting rights over the
unoccupied land within the concession, for fifty years, with a right to renewal, at a yearly rent of 50 %. The
King, in consideration of this, undertook to protect the concessionaires in the exercise of their rights. The
claim made in the petition was that the first respondent had trespassed on the existing rights of native
occupiers and had caused them to be ejected from the land they occupied. Evidence was taken at the trial of
the petition. It was found that certain natives and their predecessors had been for a long time in occupation
of portions of the land included within the concession, and that they were now being ejected from the
portions of the land other than such as had been
demarcated for the sole and exclusive use of the natives. The judgment of the Court set out that the original
concession had been confirmed on December 17, 1890, by the High Court of Swaziland, a Court constituted
by the King of the Swazis with the assent of the British Government and the South African Republic, and
having jurisdiction to inquire into the validity of concessions such as that in question. But on September 19,
1908, the concession was expropriated by the High Commissioner by notice to the concessionaires under
art. 12 of Proclamation No. 3 (Swaziland),1904. The judgment went on to state that by Order in Council of
November 2, 1907, the area of the concession became Crown land, as having been expropriated, and that a
portion of it was granted to the respondent company, who claimed a clear freehold title under the grant. The
natives, on the other hand, claimed that their rights of use and occupation under native law had not been
affected. It was contended for them that the rights they possessed before and after the granting of the
concession remained intact, and had been recognized later on by Art 5 of the Order in Council made on June
25, 1903, and that these rights had not been subsequently cut down. The Court held that, at all events by the
Order in Council made on November 2, 1907, the ownership of the land had passed to the Crown, and that
the effect of this was to extinguish any rights of use and occupation that were in the natives; and that the
documents and circumstances showed that it was intended to extinguish all such rights. As matter of fact, the
natives were given instead, sole and exclusive rights over one-third of the land included in the concession,
and the concessionaires had been given such rights over the remaining two-thirds. In the opinion of the Court
below, the Order in Council of November 2, 1907, was validly made. Even if Swaziland was no more than a
protectorate, it was one which approximated in constitutional status to a Crown Colony, and the Crown had
power to make laws for the peace, order and good government of Swaziland, and of all persons therein. Any
original native title had, therefore, been effectually extinguished. The question which their Lordships have to

182
 consider is whether this conclusion was right in point of law………. In the Southern Rhodesia case, Lord
Sumner, in an elaborate judgment given on behalf of the Judicial Committee on a special reference,
expressed views which are substantially similar. He held that a manifestation by Orders in Council of the
intention of the Crown to exercise full dominion over lands which are unallotted is sufficient for the
establishment of complete power. Both of these cases imply that what is done may be unchallengeable on
the footing that the Order in Council, or the proclamation made under it, is an act of State. This method of
peacefully extending British dominion may well be as little generally understood as it is, where it can operate,
in law unquestionable dispute…………..The principles of constitutional law laid down in the earlier part of
their Lordships’ judgment render it in their opinion impossible to maintain the argument submitted for the
appellant. That argument is that the Crown has no powers over Swaziland, except those which it had under
the conventions and those which it acquired by the conquest of the South African Republic. The limitation in
the Convention of 1894 on interference with the rights and laws and customs of the natives cannot legally
interfere with a subsequent exercise of the sovereign powers of the Crown, or invalidate subsequent Orders
in Council. But if this be true, it makes an end of the appellant’s case. For the Order in Council of 1907, after
providing for power to set apart certain lands in Swaziland, the subject of concessions by the paramount
chiefs, enabled the High Commissioner to acquire the remaining land and to deal with it. He had therefore full
power to make the Crown Grant of March 16, 1917. The power of the Crown to enable him to do so was
exercised either under the Foreign Jurisdiction Act, or as an act of State which cannot be questioned in a
Court of law. The Crown could not, excepting by statute, deprive itself of freedom to make Orders in Council,
even when these were inconsistent with previous Orders.
Their Lordships will humbly advise His Majesty that this appeal should be dismissed. As the question
involved is concerned with constitutional issues and is of far-reaching public interest, they will advise,
following precedents in other cases, and that there should be no costs of the appeal.

11.4 Northern Rhodesia Order in Council, 1911

By the 1911 Northern Rhodesia Order in Council, the earlier Orders in

Council were revoked and the two territories became one political unit
under the name of Northern Rhodesia. The country continued to be
administered by the BSA Co. under the powers conferred by its Charter of
Incorporation and the 1889 Orders in Council. The 1911 Order in Council,
like the earlier Orders, contained no provision vesting land in the
Company. As far as land was concerned the 1911 Order in Council
divided the Country into two parts, viz; land within Barotseland and other
land. In Barotseland the Litunga had authority in tribal matters. As
regards land not within Barotseland, Natives were protected in their
occupation of land in that they could not be removed or displaced except
after inquiry and order of the Administrator approved by the High
Commissioner.

The BSA Co granted land to the white settlers who were in need of it. The
grant took the form of a “permit of occupation” whereupon on fulfillment
of a development clause by the tenant, freehold title was granted. The
development clause inserted in the “permit of occupation” required the
fulfillment of a stipulated minimum development of the land. Grants of
land in this manner did of course involve displacement of the indigenous
population contrary to the assurances contained in 1911 Order in
Council.11
11
See the Report of the Commission of Inquiry into land Matters in the Southern Province, 1982,

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11.5 Northern Rhodesia Order In Council, 1924
By an agreement (commonly known the Devonshire agreement) dated the
29th day of September 1923 and made between the Secretary of State for
the colonies and the B.S.A Company, the Crown relieved the Company of
the administration of Northern Rhodesia as from 1st April 1924. Under the
agreement, the Company in return for the confirmation of its rights over
all minerals in Northern Rhodesia (Barotseland excepted), surrendered its
rights over land. It was agreed, however, that the Company should retain
its title to certain freehold areas in North Eastern Rhodesia which it held
under ‘certificates of claim’ granted in 1893 by the Commissioner and
Consul-General in British Central Africa. A concession of 10,000 Sq. miles
in North Eastern Rhodesia given by the Company in 1895 to the North
Charterland Company would also be maintained, and the Company
would be given half the proceeds of all sales or leases of land in North-
Western Rhodesia until the year 1965. By this agreement, the crown
obtained unfettered control over all the other land of the territory with the
exception of Barotseland, where Native rights in land had long been
secured by treaties.12 The alienation of land in Barotseland was forbidden
by the Barotse – North – Western Rhodesia Order in Council, of 1899.

The 1911 Order in Council was revoked by the 1924 Northern Rhodesia
Order in Council by which administration of the territory by the Company
was terminated and entrusted to a Governor appointed by the British
Sovereign. The Governor was empowered on behalf of the British
sovereign to make grants and dispositions of land within the territory
other than in Barotseland. The 1924 Order in Council contained no
provision vesting land in the British sovereign or the Governor. Grants
and dispositions of land were made to the settlers under the powers
conferred upon him by the Order.

11.6 The Creation Of Reserves And Crown Lands: Northern Rhodesia

(Crown Lands And Natives Reserves) Order In Council, 1928

Following the termination of the BSA Co.’s mandate to administer the

Territory in 1924, Sir Herbert Stanley was appointed as the first Governor
of the territory. Sir Herbert Stanley had a policy of land reservation which
was approved by the colonial office.

Government Printers, Lusaka.

12
Meek, C,K, land law and custom in the colonies, Frank Cass and Co. Ltd, London, 1966.p.120 .

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 Shortly after the 1924 Order in Council came into operation, a Native
Reserves Commission East Luangwa (now Eastern Province) 1924 – 1925,
was appointed to inquire into what land could be set aside for African
occupation in the Fort Jameson (Chipata) and Petauke Districts. Other
Commissions dealing with other parts of the territory were subsequently
appointed. The Northern Rhodesia (Crown Lands and Native Reserves)
Order in Council 1928 gave effect to the Recommendations of the Native
Reserves Commissions. By the Order in Council, land (other than land in
Barotseland and three freehold areas vested in the Company) was divided
into Crown lands and Native Reserves. The effect of creating reserves was
that land not so reserved and outside reserves became Crown land. All
rights of the British sovereign in or in relation to Crown lands was vested
in and made exercisable by the Governor who was empowered to make
grants and dispositions of Crown land to the white settlers. The
indigenous people were not to be able to enjoy customary land rights over
Crown rights. The natives were removed from crown lands and consigned
to Native Reserves.
As to the conditions of non-native tenure in the settled areas along the
main railway line from Livingstone to Ndola, farms were granted under
freehold title , subject to a preliminary leasehold period of 5 years during
which personal occupation was obligatory and a certain minimum
amount of development was to be carried out. The policy of establishing
native reserves was an attempt to implement the principle laid down by
the British Government in 1900 (under the North-Eastern Rhodesia Order
in Council of 1900) that sufficient land should, from time to time, be
assigned in Northern Rhodesia for native occupation. 13 But the policy
when put into practice did not prove to be satisfactory. Many natives
communities objected to being removed from Crownlands, and many
European farmers found themselves unable to obtain labour. 14 Some of the
reserves had insufficient access to the railway, others became
overcrowded. Large areas of the reserves proved to be uninhabitable
owing to the absence of water supplies or the presence of tsetse fly; and at
the same time many areas from which the natives had been removed were
left without inhabitants.15
Native Reserves were vested in the Secretary of State and set apart in
perpetuity for the sole and exclusive use and occupation of the Natives.
The Governor was required to assign land within each Native reserve to
Africans, “whether as tribes or portions of tribes.” The Governor was also
empowered to make grants of land or interests in land in the Native
Reserves to non- native individuals for a period not exceeding 5 years.
African customary law regulated tenure in the reserves. English Law
regulated the interests in Crown land. The interests created in the Crown
13
Ibid at page 121.
14
Ibid.
15
Ibid.

185
 land where those known to English law16. The two types of interests that
existed in crown land were freehold estates and leasehold estates. As a
result of the 1928 Order in Council two types of tenure were created , viz:
statutory tenure in the crown land and customary tenure in the native
reserves. This was the genesis of the country’s dual land tenure system
that we have today.
The 1928 Order in Council was Supplemented in 1929 by the Northern
Rhodesia (Native Reserves) Supplementary Order in Council 1929 which
set aside additional areas as Native Reserves. By the Northern Rhodesia
Crown lands and Native Reserves (Tanganyika District) Order in Council
1929 the three freehold areas vested in the BSA Co. were set aside as
Native Reserves17.

It should be noted that in line with the decision in re: Southern Rhodesia
case, the crown had legal title to land in Northern Rhodesia only after the
promulgation of the 1928 Order in Council.

The unsatisfactory condition of the native reserves, coupled with the fact
that European settlement in Northern Rhodesia had proved to be very
much smaller than was at one time anticipated 18, led the Government to
formulate a new land policy modelled on that adopted by the Nyasaland
Government in 1936. But instead of declaring the whole of the unalienated
land to be Native Trustland (as was the case in Nyasaland) it was decided
that areas of unalienated land which were shown by ecological survey to
be suited for non-native settlement, and by geological survey to contain
workable mineral deposits, should be retained as Crown land 19. The
Government’s new policy which was announced in July 1942 may be
summarized as follows:-

(a) Crownland was to be available for non native settlement and for
minning development and was to include land certified to be
suitable for European development and all land known to contain
mineral resources. It was to include areas the final allocation of
which could not at the time be determined.

(b) Native Trust land was to be vested in the Secretary of State for
the Colonies and was to be set apart for the exclusive use of
natives of Northern Rhodesia. But provision was to be made for
alienation of land for specific periods to:-
16
Mvunga,M.P. “The Colonial Foundations of Zambia’s Land Tenure System, NECZAM Zambia Limited,
1980 p. 27.
17
These Orders in Council were amended in detail from time to time and ultimately consolidated by the
Northern Rhodesia (Crown lands and Native reserves) Order in Council, 1963.
18
According to Dr.Meek, the European population in 1938 was 13,000. – Supra note 12 at p.121.
19
Ibid.

186
 (i) individual natives;
(ii) for the purpose of establishing townships; and
(iii) to non natives in special cases and for limited area, where it
could be shown that alienation was to be for the benefit of
the natives and the land will not be required for direct
occupation.20

The establishment of Native Trust lands was not to stand in the way of the
development of railways or of mineralized areas; and any areas which
was known to contain minerals of economic value was to be excluded
from Native Trust lands.21

11.7 The Creation of Trust lands Reserves – The Northern Rhodesia (Native
Trustland) Order In Council 1947

Not long after the creation of Native Reserves, the situation in Reserves
began deteriorating, creating a severe problem of land pressure. The
Colonial Government also found itself in an embarrassing situation of
having large tracts of unalienated land within Crown land, while there
was scramble for land in reserves.
In 1935, Sir Hebert Young was appointed Governor of the territory having
been in the same capacity in the neighboring British protectorate of
Nyasaland. Upon his appointment, the new Governor questioned the
efficacy of the Reserve scheme in the Northern Rhodesia protectorate. The
Governor preferred the Trust land scheme as it existed in Nyasaland. A
Commission of inquiry was appointed in 1935 to divide land not yet set
aside for Reserves. The Commission came up with its report in 1946. On
14th October 1947, recommendations of the Commission were effected by
the Native Trust land Order in Council 1947. By the Northern Rhodesia
(Native Trust land) Order in Council 1947, land described in the schedule
to the order was declared to be Native Trust land and vested in the
Secretary of State to be administered and controlled by the Governor of
Northern Rhodesia “for the use or common benefit direct or indirect of natives.”
Non indigenous persons could be granted “rights of occupancy” for
duration of a maximum of 99 years so long as, in the determination of the
Governor, this was in the general interest of the Community as a whole.

11.8 Northen Rhodesia (Gwembe District) Order In Council, 1959

The Northern Rhodesia (Gwembe District) Order in Council 1959 was

promulgated in order to address or meet the problems arising from the
construction of the Kariba Dam and the inundation of portions of reserves

20
See the Northern Rhodesia Government Gazette of July 31st, 1942. General Notice No.16.
21
Ibid.

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 and trust land. The Order applied to the Gwembe Administrative District.
The Order authorized the inundation of land and gave the Governor
special powers relating to the making of grants of land, fishing rights and
the making of regulations applicable only to the Gwembe Administrative
District.

11.9 Zambia Independence Order, 1964

On attaining independence in 1964, the Northern Rhodesia (Crown lands

and Native Reserves) Order in Council 1928 to 1963, the Northern
Rhodesia (Native Trust land) Orders in Council 1947 to 1963 and the
Northern Rhodesia (Gwembe District) Order in Council 1959 were not
revoked. The Zambia Independence Order 1964, however, provided that
the Orders were to be construed with such modifications, adaptations,
qualifications and exceptions as could be necessary to bring them into
conformity with the Independence Order.

11.10 Zambia (Stateland And Reserves) Order 1964, Zambia (Trustland) Order
1964, Zambian (Gwembe District) Order, 1964

On attaining Independence it became necessary to:-

(a) Divest the British Sovereign of all rights in or in relation to the
Crown land;
(b) Divest the Governor of the territory of all powers conferred
upon him by the Orders in Council and to confer them upon the
President; and
(c) Divest the Secretary of State of all authority to give instructions,
directions or approvals as to the exercise of powers under those
Orders.

The Zambia (State land and Native Reserves) Order, 1964 transferred to
and vested in the President of the Republic of Zambia all rights in or in
relation to Crown lands or other immovable property in Northern
Rhodesia that were vested in the British sovereign immediately before
independence and all Native reserves that were vested in the Secretary of
State immediately before Independence.

The Zambia (Trust land) Order 1964, transferred to and vested in the
President of the Republic of Zambia all Native Trust land that was vested
in the Secretary of state immediately before Independence.

The Zambia (Gwembe District) Order 1964, conferred upon the President
of Zambia the powers formerly exercisable by the Governor of the
territory under the Northern Rhodesia (Gwembe District) Order 1959 and

188
 reference to the directions or approval of the Secretary of State deleted
from that order.

11.11 Land Reforms in The First Republic-1964-1972

At Independence, Zambia retained both the Colonial categorization of

land and the dual land tenure system. On 24 th November 1964,
Government appointed a Cabinet Land Policy Committee to look into the
question of land. A Land Commission was subsequently appointed in
1965 to advise the Cabinet Land Policy Committee. The reason
Government decided to appoint a Cabinet Committee and a Commission
was because previous commissions were only concerned with certain
aspects of land policy and none of them looked into the question of land
in the territory as a whole. As to the timing of the appointment of the
Cabinet and Commission this had to be after independence when an
African government with the interests of the majority was in power.22
The terms of reference of the Cabinet Land Policy Committee were:-

(i) to examine all aspects of land policy and administration which

were inherited on Independence;
(ii) to examine the land problems submitted by the Provincial Working
Committee; and
(iii) to submit recommendations to the Cabinet on the future land
policy and land laws of Zambia.23

The terms of reference of the Johnson Land Commission were:-

(i) To examine and report on all aspects of the land policy inherited by
Zambia on becoming an independent Republic, together with all
facets of administration which stemmed from this policy;
(ii) To recommend to the Cabinet Land Policy Committee the changes,
amendments and alterations considered necessary or desirable for
the establishment of a land policy suited to present and future
needs of Zambia;
(iii) To recommend to the Cabinet Land Policy Committee the methods
and procedure for implementing the recommendations under (ii)
above.24

The Land Commission was assisted by a Provincial land working policy

committee which was set up by Government in all provinces except
Western.
22
See Report of the Johnson Land Commission,1967 Lusaka, Government Printer, p 1- foreword.
23
Ibid page 3.
24
Ibid page 4.

189
 The report of the Land Commission was ready in August 1967.

In general terms, the Commission made the following recommendations:-

(i) The Orders in Council should be revoked and replaced by a Land
Administration Act. This Act will regulate the making of original grants
of title, and provide for the unification of land administration and an
integrated land system.
(ii) The law applicable to land held on statutory tenure should be amended,
simplified and enacted as part of the legislation of Zambia so as to form the
basic land law.
(iii) A system of registered title should be introduced and be applicable to land
held under statutory tenure and to land held under customary tenure for
which individual title is given.
(iv) Persons holding land on customary tenure should be enabled to obtain
registered title to their land and thereafter that the basic land law should
apply to the land in place of customary law. The machinery for giving
registered title should be on the lines of the Reserves and Trust Land
(Adjudication and Titles) Ordinance but should be brought into operation
either on the application of Occupiers of land or at the instance of the
Government.
(v) The acquisition of rights by individuals to use unalienated state land and
unoccupied land in the Reserves, Trust Land areas and the Barotse
Province should be subject to the control of the Government. This will
entail controlling the exercise by individuals of customary rights in
relation to unoccupied land. The introduction of controls should be
piecemeal as when political judgment determines.
(vi) The laws relating to the preservation of natural resources, town and
country planning, forests, game and fauna conservation should be of
general application and the law relating to the compulsory acquisition of
land should apply to all land irrespective of whether it is held under
customary tenure or statutory tenure.25

The Johnson Commission appended to its report a draft Act entitled

“Property and Conveyancing Act.” The recommendations of the
Commission were not implemented by the Government.26

11.12 Problems Created By Absent LandLords.

25
Ibid page 14, See Chapter 7 entitled “Recommendations” at p161 of the Land Commission report
for the specific recommendations. The total number of recommendations made by the Commission
totalled 63.
26
The decision to declare and vest all land in Western Province in the President and to declare it a reserve
like any other reserve in the country, was in line with the recommendation of the Land Commission.
Report of 1967. See recommendation No.3 at p 161 of the report.

190
 After independence, the country experienced a flight of white settlers who
abandoned and left their large tracts of land unutilized and/or
undeveloped. The Government could not legally acquire the land due to
the Constitutional provision under section 18 of the Independence
Constitution which provided for the protection against deprivation of
property. The Independence Constitution had an entrenched bill of rights.
There was need for a referendum to amend section 18 of the
Constitution27. The year 1969 witnessed the National campaign for a
referendum to amend section 18 of the constitution to give or pave way to
compulsory acquisition of undeveloped and unutilized land owned
mainly by absentee landlords. The majority of the voters were in favor of
amending the constitution. The amendment of the Constitution 28 resulted
into the enactment of the Lands Acquisition Act in 1970, which was the
law enacted to address the problem created by the absent landlords.
Compulsory Acquisition of property in Zambia is dealt with in chapter
fourteen of this book.

11.13 The Western Province (Miscellaneous Provisions) Act, 1970

We have noted from above that Barotseland had a special status within
the Northern Rhodesia territory. In matters relating to land, Barotseland
was not affected by the Orders in Council. The Litunga and his Council
had powers in all matters relating to land in Barotse land.
On 18th May 1964, an agreement known as the Barotseland Agreement
1964, was entered into between the Government of the Republic of
Zambia and the Litunga of Barotseland to retain the arrangements or
status quo with regard to the land issue in the independent and unitary
state of Zambia which was to be born on 24th October, 1964. Under the
agreement the Litunga and his Council were charged with responsibility
for administering Barotse customary land law within Barotseland. The
status quo as per the Agreement, continued until 1970 when by virtue of
the Western Province (Miscellaneous Provisions) Act29 all land in the
Western Province was declared to be a reserve within the meaning of and
under the Zambian ( State lands and Reserves) Orders, 1928 to 1964 and
vested in the President of Zambia like all reserves in the Country. The
enactment of this statute was preceded by the constitutional amendment
of 1969 which abrogated the Barotseland Agreement.30

Section 2 of the Constitutional (Amendment) (Number 5) – Act Number

33 of 1969 which abrogated the Barotse agreement provided that:-

27
See Section 72 of the Independence Constitution.
28
See Act No. 33 Constitutional (Amendment No. 5) of 1969.
29
Chapter 297 of the Laws since repealed by the Lands Act 1995.
30
See Constitutional (Amendment) [No.5] Act No. 33 of 1969.

191
 section twenty of the Zambia Independence Order, 1964, is
amended by insertion after subsection (2) thereof of the following
new subsection:
(3) this section shall not apply to the Barotse land agreement, 1964
(that is to say, the agreement dated 18th May, 1964, between the
Government of Northern Rhodesia and the Litunga of Barotse
Land which provides that it may be cited by that title) which
agreement shall on and after the commencement of the
Constitution (Amendment) (Number 5) Act, 1969, cease to have
effect, and all rights (whether vested or otherwise), liabilities and
obligations there under shall thereupon lapse

The three categories of land continued to be in existence until 1995, when

by virtue of the Lands Act of 1995, the Zambia (State land and Reserves)
Orders in Council, 1928 to 1964 and the Zambia (Trust land) Orders 1947
to 1964, inter alia, were repealed and reserves and Trust land were merged
into one and became known as Customary area.

11.14 Summary of Chapter Eleven by Way of A General Commentary On The

Colonial Land Policies.

The advent and imposition of colonialism in Africa altered the African

land relations based on customary tenure. Colonial rule in many parts of
Africa in general, led to changes in land tenure systems. Mvunga has
observed that in sub-Saharan Africa, relationships and conflicts between
Africans and European interests are or were strongly reflected in the land
policies31. The two interests usually clashed and resulted in uprisings.
Mvunga has further observed that in countries or territories such as
Kenya, Malawi and the two Rhodesias that had a heavy presence of white
settlers, the land tenure system fully acknowledged the European
interests32.
Economic considerations were paramount in the creation of various
categories of land in the Northern Rhodesia protectorates. Mvunga has
observed thus:-

…the creation of the various categories of land was influenced by many

factors all hinging on economic interests. There was need to assure
European settlers with land for their settlement and exploitation. But this

31
Mvunga, M,P, supra note 1 at P 2.
32
Ibid.

192
 could not be achieved without designating reserves within which to
confine the indigenous people. But the latter also needed good and
adequate land for their utilization. The reconciliation between the two
interest groups was not an easy one. Then of course the mineral deposits of
Northern Rhodesia necessitated the exclusion of those areas known or
believed to have minerals from land under African occupation.33

Colonialism entailed the usurpation of land of the local people by the

white settlers. The land policies of the colonial Government were
discriminatory. The indigenous people were consiged into the reserves
which generally had poor soils, not serviced with communication and
sometimes infested with tsetse flies. The struggle for independence was
not only about regaining the political freedoms but also regaining the land
that was confisticated by the colonialists.
The demands for the retrieval of the land have in some cases resulted into
land wars. For instance, in Zimbabwe, the conflict between the so called
war veterans and the white commercial farmers is or was about the
unequal distribution of land. For true ‘independence’ to be achieved, both
political freedom and the land had to be regained. This could explain the
land liberation struggle taking place in Zimbabwe today and this clearly
reflects the thinking of President Robert Mugabe who succinctly put it
thus:-

For us land is about life and death. Many wonder why the issue of land is
such a fundamental national question in Zimbabwe and elsewhere in our
Southern African region. They need not go very far. It remains a principal
and loaded marker of frontiers of our being both as individual and as
sovereign nations, a marker whose utility and symbolism runs the whole
gamut, right down to the common man and woman in the village. For us
life comes from, flourishes on and ultimately ends in land. Our loss of it
through colonial conquest went deeper in meaning than the mere loss of a
means of production. It amounted to loss of our being…..The liberization
struggle in its varied and cumulative phases was principally about
recovering our land from British colonial settlers who had expropriated it
from us, with the legal sanction and benediction of the British
establishment…… To that extent, 1980, the year we regained our
independence was an important detour in the long march to full sovereign
statehood. It meant the beginning of the third Chimurenga, third
liberization struggle, whose principle focus would be restoration of equity
and fairness in the ownership and access to national resources away from
colonial and racial divisive misallocation. That way our goal of founding a
non-racial fully integrated multicultural society of equals would be
realized. Our land Reform Programme seeks to do and achieve no more
33
Ibid., at p 41.

193
 than that. It cannot be realized by anything short of that…Zimbabwe’s
land and other natural resources must first and foremost be for
Zimbabweans! This is our vision, which is also our survival so let it be.34

In the Southern African region Zimbabwe, and Namibia including

South Africa have a shared history of violent Colonial
dispossession of land, without compensation. The Independent
Governments of these Countries are faced with an enviable and
difficult task of redistributing the land to the masses who were
dispossessed of their ancestral lands. The process of land
redistribution in Zimbabwe has sadly led to loss of several lives. In
South Africa there are currently threats of ‘invasion options’ as
recently witnessed in Zimbabwe.

34
See foreword by President Mugabe to the “Zimbabwe Land Reform Programme Paper.” June 2001

194