1.
Land Tenure Security (Section 50 of CLA)
4.7.2 Customary law restricts customary allocations to usufructuary rights because, in principle,
customary title is vested in traditional leaders on behalf of the people. Total alienation of any of
this land, such as by granting freehold title to non-citizens, diminishes the land assets of the
community specifically affected, and by extension the nation as a whole.
The notion of individual ownership of land is considered to be quite foreign to native ideas
across Africa.
The property rights contained in a customary estate will be private usufructuary rights in
perpetuity, and once registered, the title of the owner will have full legal status and can be
leased or used as security for a mortgage loan
4.7.3 However, because the interest of the proprietor of a customary estate is usufructuary, the
registration of a sale, lease or mortgage is not with absolute title and will be subject to what are
known as overriding interests of the community and the sovereign rights of the state (e.g.
mineral rights).
4.16.2 The notion or belief that customary land has no value has been a big hindrance to
offering customary land as a share in negotiations to create joint ventures in various projects.
This notion is wrong because land has value as a scarce resource and has other physical and
intrinsic attributes that also contribute to its economic and social value. To reduce, if not
eliminate problems often associated with the valuation of customary land at the time of
acquisition by the Government, compensation shall be based on the open market value of the
land and all permanent improvements on the land.
It should be noted that the general perception that customary land has no title is a creature of
English land law; it was intended to make it easier for colonial authorities to facilitate land grabs
from Malawians without compensation. Our land law has perpetuated this wrong notion; our
own Government has alienated vast tracts of customary land by first converting it into public
land, hence giving customary land title, then issuing leases. Yet we never wonder who gave title
to public land. The law must therefore confer title on customary land and enable traditional
leaders as trustees to issue leases.
Customary Land: By definition, customary land is all land falling within the jurisdiction of a
recognized Traditional Authority, which has been granted to a person or group and used under
customary law.
Land Act
customary land has been defined as “all land used for the benefit of the community as a whole
and includes unallocated customary land within the boundaries of a traditional land
management area.”1
1
Section 2 of the Land Act 2016
Land (Amendment) Act
““customary land” means land held, occupied and used in accordance with customary law”;
The CLA provides for the disposition of customary land. However, Section 50 of the CLA 2016
provides that:
“A disposition of customary land shall not transfer the residual property interest vested in the
community but the registered usufructuary right in the grantor.
It should be stated at the outset that prior to the enactment of the CLA, courts in Malawi
interpreted usufructuary right in relation to customary land holding to mean the right to the
occupancy and use of the said land. However, the Supreme Court of Appeal in Mervis Chirwa v
Faizer Karim& Another2 16 denied this proposition. This judgement was however based on the
repealed Land Act.
The CLA 2016 was enacted with the aim of protecting an individual’s interest in customary land
through the formalization and privatization of the said land. However, the Act seems to be
holding on to the old perception of customary land holding by limiting an individual’s interest to
merely usufructuary under section 50. Bearing in mind that “usufructuary right entails the right
to use and occupy land, there was therefore need to examine the safeguards for protecting an
individual’s interest in customary land holding under the Act.
How has the CLA protected the interests of an individual in the holding of customary land?
The notion of individual ownership to customary land has been a subject for debate for
centuries. Kwame Akufo argues that the notion of individual ownership of land is quite foreign
to native ideas. Thus, land belongs to the community, the village or the family and never to the
individual. He stated that title to customary land is said to vest in the corporation and not the
cooperators.3
This entails that ownership is and should not only be limited to “title.” Kwame Akufo recognizes
that the power of use and alienation or other grants and dispositions is an attribute of
ownership. However, he stated that with respect to customary land, this power is vested in the
group leadership, in their representative capacity.23 Restricting an individual’s interest in land
to usufructuary entails that under customary law, an individual is not deemed as having
ownership of customary land. It is in light of this that the CLA has to be investigated if it has
sufficiently provided security of tenure in customary land
Different scholars have defined security of tenure differently. David Mitchell, describes security
of tenure as the degree to which there is certainty that land rights will be recognized by others
2
MSCA Civil Appeal No.1 of 2016 (Judgement of 8 February 2017)
3
Kwame Akufo, ‘The conception of land Ownership in African Customary law and its implications for Development’
( 2009), 17 African Journal of International Land Comparative Law, 57
and the level of protection that exists in the event of a challenge.41 He stated that the
important components of tenure security are: (i) the degree to which rights are recognized; (ii)
the level of protection against claims by others and (iii) the duration of these rights to land. He
further stated that another important aspect of tenure security is the landholder’s freedom to
bequeath land to heirs, or to lease or grant land to others with reasonable guarantee of being
able to recover the land.4
In Malawi, the CLA 2016 was enacted with the aim of providing security of tenure to land
holders through the formalization and privatization of customary land. The aim of this research,
as already pointed out earlier, is to discover how the Act is achieving this endeavor. Therefore,
in this research, security of tenure refers to the extent to which customary land holders feel that
that their interests in customary land are protected by law. The feeling of safety in the holding
of customary land includes the legal recognition that individuals hold greater interests in
customary land than mere usufructuary rights.
The usufructuary's right of enjoyment comprises, in all legal systems, of two elements: the right
to use the thing and the right to draw its fruits.5 Essentially, a usufruct is the right to use a thing
whose title belongs to someone. Thus, a usufruct is the legal right given by the owner of a thing
to another person to use the thing for a certain period of time, usually for the remainder of that
person’s life.51 The person who holds the usufruct, known as the usufructuary, has the right to
make use of the thing and enjoy its profits and benefits provided the property is not damaged or
altered in any way.52 At the end of the stipulated period of use, the usufructuary is supposed to
relinquish the thing to the owner.
As regards residual property interest, Honore stated the following:
Ownership has a residuary character in the sense that even after all the lesser rights such as
lease, easements .etc. have been given away, the residuary rights vest in the owner. Upon the
termination or extinction of the lesser rights, all original rights of the owner get revived.
Section 50 of the CLA provides that an individual can only make a disposition of the registered
usufructuary interest and not the residual property interest vested in the community. This
means that the individual is said to hold a lesser interest in customary land under the Act.
Therefore, in this research, residual property interest means an interest greater than mere use
and occupancy of customary land.
4
David Mitchell, ‘Assessing and Responding to Land Tenure Issues in Disaster Risk Management’ (FAQ 2011) P.21
5
A. N. Yiannopoulos, ‘Rights of the Usufructuary; Louisiana and Comparative Law’ (1967) Louisina Law Review Vol
27 No. 4
The Customary Land Act defines a customary estate as ‘any customary land which is owned,
held or occupied as private land within a traditional land management area and which is
registered as private land under the Registered Land Act.’6
This has been amended
Under Section 20 (1) of the CLA, a Customary Estate (CE) must only be allocated by a land
committee (LC) to citizens of Malawi upon application. The LC is responsible for managing all
customary land in a TLMA.73 Several requirements have to be satisfied when making an
application for a Customary Estate. The application has to be in a prescribed form and has to be
signed by the applicant (s).74 The form must be accompanied by a prescribed fee.75 The Second
Schedule of the Customary Land Regulations of 2018 prescribes MK1, 000.00 as the fees for an
application for grant of certificate of customary estate and another MK1, 000.00 as fees for the
actual grant.
What mechanisms has the CLA put in place in order to provide for individual customary land
tenure security?
Advantages of customary estates
The benefits associated with the registration of customary land are somehow inter-linked. One
of the principal reasons for introducing Customary Estates was to allow people to be able to
make investments into customary land since security of tenure would be guaranteed. 7 This was
recommended due to a longstanding belief that there is a direct causal link between formalized
property rights and economic productivity
The second principal argument for the formalization of property rights has been that formal title
enables access to credit and therefore increases economic productivity 8. The security that
formal title brings with it gives landowners an incentive to invest and to use their land as
collateral.92 This is because land holders feel that they will be able to defend their rights in land
by producing evidence of ownership which in this case is the certificate issued upon registration.
The ability to use land as collateral is also expected to increase the supply of credit from formal
sources.93
Furthermore, it is said that secure land rights also help rural credit markets to develop, because
land is good collateral.94 This means that in the event that all customary land holders are able
to register their land, the whole nation is more likely to develop
Disadvantages
6
Section 2 of the Customary Land Act 2016.
7
Malawi National Land Policy 2002
8
Celestine Nyamu Musembi, De Soto and Land Relations in Rural Africa: Breathing Life into Dead Theories about
Property Rights, Third World Quarterly, Vol. 28, No.8, 2007, PP 14 57
As earlier discussed, an application for customary estate must be followed by a fee of K1000. Upon
being granted the said application, another K1000 must be paid for the grant of a customary estate
certificate. It is important to note that in Malawi over 70% of the population lives on less than $1.80 per
day.95Although the sum might appear as ridiculously cheap to most people living in the urban areas, the
same is not true for most people in the rural areas. Thus, a number of Malawians may fail to raise the
said amount in order to register their land. Furthermore, under section 27 (c) of the Act, an occupier of
land is required to pay any applicable rent, fees, charges, taxes, and other requirements in respect of his
occupation of the land. This has the potential of making it challenging for most Malawians to hold
customary land. The high costs associated with customary land holding under the CLA raises the danger
of giving poor people an incentive for selling their land to the elites who would be able to pay the
necessary fees without any challenges. As discussed in chapter two, the Evolutionary Theory of Land
Rights is development oriented. The state seeks to ensure that as the population increases, there is
individualization and privatization of land rights so as to ensure development; not only for the individual
but also for the State. Thus, the State has a duty to assist in the evolution process by not only
formulating polies and laws to this effect, but also by implementing them.
In this regard, although the CLA provides for the privatization of customary land through the invention
of the customary estates, the costs associated with the same would hinder the said evolution,
consequently the Act would fail to achieve its objective of making holders of customary land feel that
their interests in customary land are protected by law. In the end, all benefits associated with the feeling
of safety in the holding of land will not be enjoyed by both the individuals and the State as a whole.
How are the said mechanisms providing an individual with customary land tenure security?
What are the legal implications of section 50 of the CLA with respect to the protection of
customary land tenure?
The overriding objective for the enactment of the CLA was to guarantee customary land holders
that their interests in customary land are protected by law. This was done through the
introduction of customary estates as already seen in the previous chapter. However, section 50
of the Act has the potential of defeating the purpose of the Act. This chapter expounds the legal
implications of the said provision with respect to the protection of customary land tenure under
the Act.
The Act is clear under the above provision that an individual can only dispose of the registered
usufructuary interest in the land which he or she holds. Bearing in mind that chapter two of this
study conceptualized usufructuary interest to mean the right to the use and occupancy of
customary land, the researcher found that the Act describes the interest held by an individual
under customary land as mere rights to the use and occupancy of land. The Supreme Court of
Appeal in Mervis Chirwa v Faizer Karim9 stated that describing customary land title as
usufructuary or personal is inapt since an individual’s interest in customary land is more than a
right to enjoyment and occupancy of customary land.100The Court went on to state that
describing customary land holding as usufructuary is attributed to understanding customary -
land holding from other legal systems. It further stated that the temptation to consider
customary land title from the prism of legislation, common law and equity must be circumspect.
These tenets of received law assist only in analysing the nature of the proprietary right in
customary land.101 They are by themselves not without customary law, not exhaustive of the
proper understanding of the proprietary right or interest in customary land.102 Then the Court
concluded to say that it is these considerations that make customary land proprietary rights or
interest sui generis. Section 50 of the CLA clearly presupposes that an individual holds mere
rights of use and occupancy in customary land and that these rights, if registered under
customary estates, are what can be transferrable. This is built on the infamous Latin maxim of
“Nemo dat quod non habet” which literally means that no one can give what they do not
have.103 Thus, in the context of disposition of land under the Act, an individual is only capable
of disposing what he or she owns which is the right to use and occupy land
Secondly, the researcher found that another legal implication as regards the wording of section
50 of the CLA is that the Act suggests that only customary estates are disposable. Before the
enactment of the CLA, Courts is Malawi almost held a unanimous view that customary land
cannot be disposed. This was because under the old land law regime, customary land was
vested in perpetuity in the president hence an individual was wrongly understood as not having
individual title to the said land.10 However, the Supreme Court of Appeal in the Mervis Chirwa
case stated that nothing under the old land law prescribed or proscribed any disposition of
customary land. Consequently, the law neither prohibited nor authorized the sale or any
disposition of customary land hence the same could not have been merely inferred. Unlike the
old position, the CLA under section 50 expressly states that an individual can only dispose of
his/her registered usufructuary interest in customary land. This entails that no disposition of
customary land can be made under the Act if the customary land held is not registered as a
customary estate. Failure to make provisions through which unregistered customary land can be
disposed leaves customary land holders who fail to register their land without legal protection in
their dealings in land. As already established in the previous chapters, the costs associated with
the registration process as well as the holding of customary land are not favourable to all
Malawians in the country therefore, it goes without saying that some land will still remain
unregistered. In the end, the poor will end up landless. It is pertinent to note that in the Mervis
Chirwa Case, the Court stated that customary land competes on an equal footing with any other
proprietary interests as to disposal.105 The Court never made any distinction as to whether the
said land first has to be registered or not. This is obviously because the said decision was made
based on the old law regime. Although the Mervis Chirwa case was decided based on the old
law, the judgement forms part and parcel of the jurisprudence on the point that customary land,
9
MSCA Civil Appeal No.1 of 2016 (Judgement of 8 February 2017), 12.
10
whether registered on or not can be disposed by any means. This is so because the judgement
was made by the Supreme Court of Appeal which is the highest appellant court in Malawi
pursuant to section 104 of the Constitution of Malawi 1994 hence its decisions are binding and
conclusive on a point of law. If written law fails to recognize that customary land, whether
registered or not, can be disposed by whatever means, it means that holders of unregistered
customary land will feel insecure. This insecurity will even extend to investors who will fail to
make investments in unregistered land thereby making it difficult for holders to use their land
productively. In the end, holders of unregistered customary land may be compelled to sell it to
the elites thereby losing their land. Lastly, the researcher found that under section 50, the Act
creates unnecessary confusion as regards the purpose and effect of registration. As earlier
discussed in this chapter, section 50 of the Act presupposes that an individual only holds the
right to use and occupy land and that the residual property interest vests in the community and
should therefore not be transferred by the individual seeking to make a disposition of his
interests in land. This entails that the community holds a greater interest in customary land than
an individual which cannot be transferred by the said individual even after the grant of a
customary estate. The researcher was quick to observe that section 20 (2) of the Act provides
that once customary land is registered, a customary estate shall be of an indefinite period and
can be inherited. This means that once land is privatized through registration, an individual is
entitled to own it forever. Whilst relying on the repealed Land Act 1967, the MSCA in the
infamous Mervis Chirwa Case stated that selling customary land does not make land so sold
private.106 Under the said Act, if an individual intended to privatize customary land he was
supposed to make an application for a lease.107 Unlike the old law regime, the CLA already
introduces the concept of customary estate under which land is registered under the RLA. The
registration process is aimed at privatizing customary land and proving as much as practicable
that an individual or a group of people, as the case may be are the holders of customary land.
The researcher found that the Act creates superfluous uncertainty by stating that an individual
holds a customary estate for an indefinite period and by suggesting that what the community
holds in the same land is greater than the interest of the individual hence it cannot be
transferred. If an individual holds the land indefinitely, one wonders at what point the
community will exercise its interest in the land held. Furthermore, if an individual holds a lesser
interest in customary land then it means that the Act has not protected an individual’s interest
in the said land. Security of customary land tenure entails that the law should recognize that
what an individual holds in customary land is not mere use and occupancy rights. In the absence
of such recognition, the registration of mere rights to use and occupy land serves no purpose at
all and the poor might still lose their land. In countries like Kenya, an individual is said to hold
lesser rights to those of a community only in cases where customary land is registered in the
name of the community.108 If the individual desires to have exclusive use and ownership of the
said land he/she ought to make an application to the community and with the approval of the
members, exclusive use and ownership is given only for a specified period of time.109 Thus, if
the legislature intended that the community should have a greater interest in customary land
than that of the individual, it should have laid down proper guidelines on the same. 4.3.
Conclusion This chapter has established that section 50 of the CLA acts as a threat to the
protection of customary land tenure. By stating that an individual holds mere rights to the use
and occupancy of customary land, the Act lowers the status of customary land hence it is easy
for poor customary land holders who fail to register their land due to the high costs associated
with the registration process as well as the holding of customary estates to become landless.