NEW LAND ACTS AND IMPLICATIONS On...Land Ownership By Women And Youth • With the creation of a...

NEW LAND ACTS AND IMPLICATIONS

OnCustomary land holding, access to land for large commercial

agriculture, women’s and youth access to landJames Namfuko

(Chief Economist)

Ministry of Lands, Housing and Urban Development

The Second Malawi Land Symposium, 2017

Introduction

• The MLHUD together with the relevant stakeholdersunderwent a rigorous review of the then Land Act inorder to address the gaps that existed

• The process included coming up with a completelynew customary land law

• There are a total of ten land related laws that havebeen assented to out of which six are amendments

The Second Malawi Land Symposium, 2017 2

The New Land Act And The Customary Land

• The previous Land Act vested both public land andcustomary land in the President where Section 8 theprevious Land Act provided that “all public land isvested in perpetuity in the President”.

• In contrast, the new Land Act vests all land in theRepublic . Section 8 of the new Land Act providesthat “All land is vested in perpetuity in theRepublic”. This includes customary land.



• Most importantly, provisions of section 8 of the newLand Act, 2016 are in tandem with the provision ofsection 207 of the Republican Constitution which vests alllands and territories of Malawi in the Republic.

• The previous land Act did not provide for registration ofcustomary land as private land. This compromised issuesrelating to land tenure security as promulgated in theMalawi National Land Policy (MNLP)



• Lack of tenure security contributes to lowagricultural productivity since there is no sense ofownership of the land being held or used.

• In fact, the review process of the NationalAgricultural Investment Plan (NAIP) identified lackof tenure security as one of the challenges toagricultural investment



• In contrast to the above, the new land Act provides forregistration of customary land in form of customaryestate. Section 19 of the new Land Act provides thatnothing in this Act shall be construed as preventing theregistration of customary land under the Registered LandAct as private land.

• The most important aspect regarding the creation ofcustomary estate is that an individual will now be able toown land in his/her own right thereby having aguaranteed tenure security. This is one of the main goalsof the National Land Policy


Land Ownership By Women And Youth

• With the creation of a customary estate under the newCustomary Land Act, an individual , either man orwoman will be registered as the owner of the land whichin turn can be used to create a lease or sub-lease

• The Customary Land Act, 2016 will also allow registrationof persons as joint tenants or tenants in common (Refsection 20 of the Customary Land Act, 2016 and section95 of the existing Registered Land Act (Cap. 58:0)



• The advantage of owning property as joint tenants isthat when one person dies, the survivor automaticallytakes over the property without applying for Lettersof Administration.

• The process of obtaining Letters of Administrationis quite costly since the personal representative willbe required to pay estate duty to Government andlegal fees to the Legal Practitioner who is engaged toapply for Letters of Administration.



• Minors (persons under the age of 18 in Malawi)will also be able to get registered as proprietors ofcustomary estates in their own right since theRegistered Land Act provides for registration ofminors in their own right – see section 108 (1)of theRegistered Land Act.



• Having the law that provides for ownership of landby women and the youth is not enough

• In the pipeline is the development of the GenderStrategy with support from the EU under the LandGovernance Project

• The strategy will among other things carry out anassessment of key issues and barriers for women andother vulnerable groups concerning land rights andengage local institutions to address gender issues



• Currently, the process of recruiting the consultant tocarry out the assignment has commenced andhopefully the consultant will be in place by the endof this month.


Compensation on Customary Land

• The previous Land Act did not provide for payment ofcompensation in respect of Customary land compulsorilyacquired under the Lands Acquisition Act (58:04),compensation is only made for the improvements on the landnot for the land itself.

• The new Land Act expressly provides for payment ofappropriate compensation for customary land which will betransferred to Government or reserved land. Since customaryland will now be registered as private land (customary estate),assessment for compensation will include land itself and notonly improvements thereon{see section17(8)(a) )}of theCustomary Land Act, 2016.


Establishment of Land Committees and Tribunals

• The new Land Laws provides for the establishmentof Customary Land Committees for the managementof customary land.

• To ensure that there is women voice in thecommittees, membership shall comprise six persons,at least three of whom shall be women. Similarly,membership of the customary land tribunals shallhave at least three female members out of the six.


The New Land Act And Large Scale Agriculture

• The review process of the National AgricultureInvestment Programme identified access to land byinvestors as one of the barriers to investment in thecountry

• However, the new Land Act addresses the abovechallenge



• The previous Land Act did not provide for setting asideland specifically identified or earmarked forinvestment purposes. The new Land Act howeverprovides that land for investment purposes beidentified, gazetted and allocated to MalawiInvestment and Trade Centre with powers to issuederivative rights to investors.

• Successful implementation of the Land Act will thereforeensure that large scale commercial agriculture thrives inthe country



• You may also wish to note that the law also provides for landceilings based on the nature of investment and location of theland.

• The new Land Act therefore ensures that land for agricultureshould be treated as such

• The Act will also prevent investors from acquiring large parcelsof land for speculative purposes as is the case in other parts ofthe country where some developers leased large parcels of landwhich they are failing to effectively utilise.

[For reference purposes, the provisions above arecontained in section 11 of the Land Act, 2016]



• There is also the provision of transfer of customary landfor public interest that includes investments of nationalinterest.

• With regard to the above, customary land shall betransferred subject to among other conditions payment ofappropriate compensation as assessed by theregistered valuer.

• Most importantly, there is also a provision that theMinister shall direct the payment of compensation by theperson to whom or organisation to which the land hasbeen transferred to and is granted under lease.



• Currently, it is the OPC’s responsibility to paycompensations.

• This will in a way speed the process of landacquisition by investors


Land Laws Implementation

• Having the land laws in place is not a panacea to landadministration and management challenges in thecountry

• We all need to join hands in the implementation ofthe land laws

• As a Ministry, we have developed a costed road mapwith which to pilot the implementation of the lawsand some of the intervention areas are as follows


RoadmapNo Intervention Area Activities

1 Setting up of Institutional/Administrative Framework

Ø Establish land reformsimplementation structures

Ø Carry out systematicregistration of customaryestates on pilot basis


RoadmapNo Intervention

AreaActivities

Development of Instruments for Implementation of Existing and Additional Laws

Ø Develop land-related subsidiary legislation(rules, regulations, guidelines and standards)

Ø Produce process manuals based on assessmentof existing practices, background studies andpiloting

Ø Prepare National Physical Development Plan(National spatial framework forimplementation of sector programmes andprojects)

Ø Develop national planning guidelines andstandards (for monitoring and enforcement ofregulations and plans)


RoadmapNo Intervention

AreaActivities

3 Development of Instruments for Implementation of Existing and Additional Laws

Ø Produce local planning manual (fordecentralized planning and monitoring)

Ø Prepare district physical development plan (pilotdistricts)

Ø Develop village land use plans (pilot districts)Ø Finalize National Land Use PolicyØ Develop Resettlement Policy; and Resettlement

Bill (to provide for the rehabilitation andresettlement of persons affected by theacquisition of land for projects of publicpurpose or involuntary displacement due to anyother reason, including disasters)


Intervention Area

Activities

Developmentof InstrumentsforImplementationof Existing andAdditional Laws

Ø Develop Sectional Title Bill (to provide fortitle registration of building properties within aproperty at various height levels)

Ø Develop Valuation Bill (to provide for theregulation of valuers and the valuation ofproperty that has been identified foracquisition or disposal)

Ø Review Adjudication of Titles ActØ Develop National Urban PolicyØ Draft Landlord and Tenant BillØ Review land policy and land-related laws every

5 years : starting with a review of the 2002Malawi National Land Policy to make itrelevant to the current situation on the ground


Intervention Area Activities

4 Preparation of Land Information Management Framework

Ø Modernize survey reference systemØ Revise base mapsØ Digitize all land-related recordsØ Design and develop integrated Land

Information Management System (LIMS) incrementally

Ø Assess usability of data in Global Titles and Deeds System (GTDRS

Ø Establish district land registriesØ Establish regional hydrographic offices


No Interventions Area

Activities

Management of Agricultural and Non-Agricultural Leasehold Database

Ø Assess quality of data on land leases and resolve emerging issues

Ø Ascertain land rightsØ Decide on handling of floating and flying

estates Ø Decide on management of overlapping

estatesØ Enhance management of paper-based

recordsØ Identify idle estates through field verification

and analysis of historical satellite data from 2005 to 2014


Intervention Area

Activities

Mobilization of Resources for Implementation of Land Reforms

Ø Revise all land-related fees and charges after consultations

Ø Conduct a land market studyØ Introduce land tax on freehold land both

within and outside city boundaries after consultations

Ø Reinstate land rent roll on estates based on LIMS

Ø for implementation of land reformsØ Send out demand noticesØ Monitor revenue collection


Conclusion

• Earlier on alluded to, we will be calling for aworkshop to share with all the stakeholders thecontents of the roadmap

• Continued support in the implementation phase ofthe land laws is very key


THANK YOU


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