NEW LAND ACTS AND IMPLICATIONS On

NEW LAND ACTS ANDIMPLICATIONSOnCustomary land holding, access to land for large commercialagriculture, women’s and youth access to landJames Namfuko(Chief Economist)Ministry of Lands, Housing and Urban DevelopmentThe 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 amendmentsThe Second Malawi Land Symposium, 20172

The New Land Act And TheCustomary 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.The Second Malawi Land Symposium, 20173

The New Land Act And TheCustomary 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)The Second Malawi Land Symposium, 20174

The New Land Act And TheCustomary Land 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 investmentThe Second Malawi Land Symposium, 20175

The New Land Act And TheCustomary Land 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 PolicyThe Second Malawi Land Symposium, 20176

Land Ownership By Women AndYouth 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 Second Malawi Land Symposium, 20177

Land Ownership By Women AndYouth 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.The Second Malawi Land Symposium, 20178

Land Ownership By Women AndYouth 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.The Second Malawi Land Symposium, 20179

Land Ownership By Women AndYouth 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 issuesThe Second Malawi Land Symposium, 201710

Land Ownership By Women AndYouth 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.The Second Malawi Land Symposium, 201711

Compensation on CustomaryLand 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.The Second Malawi Land Symposium, 201712

Establishment of LandCommittees 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 Second Malawi Land Symposium, 201713

The New Land Act And LargeScale 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 abovechallengeThe Second Malawi Land Symposium, 201714

The New Land Act And LargeScale Agriculture 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 countryThe Second Malawi Land Symposium, 201715

The New Land Act And LargeScale Agriculture 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]The Second Malawi Land Symposium, 201716

The New Land Act And LargeScale Agriculture 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.The Second Malawi Land Symposium, 201717

The New Land Act And LargeScale Agriculture Currently, it is the OPC’s responsibility to paycompensations. This will in a way speed the process of landacquisition by investorsThe Second Malawi Land Symposium, 201718

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 followsThe Second Malawi Land Symposium, 201719

RoadmapNo Intervention AreaActivities1Ø Establishlandreformsimplementation structuresØ Carryoutsystematicregistration of customaryestates on pilot basisSetting up ofInstitutional/AdministrativeFrameworkThe Second Malawi Land Symposium, 201720

NoInterventionAreaActivitiesRoadmapDevelopmentØ Develop land-related subsidiary legislationof Instruments(rules, regulations, guidelines and standards)forØ Produce process manuals based on assessmentImplementatioof existing practices, background studies andn of Existingpilotingand Additional Ø Prepare National Physical Development PlanLaws(Nationalspatialframeworkforimplementation of sector programmes andprojects)Ø Develop national planning guidelines andstandards (for monitoring and enforcement ofregulations and plans)The Second Malawi Land Symposium, 201721

nstrumentsforImplementation ofExisting andAdditionalLawsØ Producelocalplanningmanual(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 ResettlementBill (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)The Second Malawi Land Symposium, 201722

InterventionAreaActivitiesDevelopmentØ Develop Sectional Title Bill (to provide forof Instrumentstitle registration of building properties within aforproperty at various height levels)Implementation Ø Develop Valuation Bill (to provide for theof Existing andregulation of valuers and the valuation ofAdditional Lawsproperty 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 every5 years : starting with a review of the 2002Malawi National Land Policy to make itrelevant to the current situation on the groundThe Second Malawi Land Symposium, 201723

4Intervention AreaActivitiesPreparation of LandInformationManagementFrameworkØØØØThe Second Malawi Land Symposium, 2017Modernize survey reference systemRevise base mapsDigitize all land-related recordsDesign and develop integrated LandInformation Management System(LIMS) incrementallyØ Assess usability of data in Global Titlesand Deeds System (GTDRSØ Establish district land registriesØ Establish regional hydrographic offices24

NoInterventionsAreaActivitiesManagement ofAgricultural andNonAgriculturalLeaseholdDatabaseØ Assess quality of data on land leases andresolve emerging issuesØ Ascertain land rightsØ Decide on handling of floating and flyingestatesØ Decide on management of overlappingestatesØ Enhance management of paper-basedrecordsØ Identify idle estates through field verificationand analysis of historical satellite data from2005 to 2014The Second Malawi Land Symposium, 201725

InterventionAreaMobilization ofResources forImplementationof LandReformsThe Second Malawi Land Symposium, 2017ActivitiesØ Revise all land-related fees and charges afterconsultationsØ Conduct a land market studyØ Introduce land tax on freehold land bothwithin and outside city boundaries afterconsultationsØ Reinstate land rent roll on estates based onLIMSØ for implementation of land reformsØ Send out demand noticesØ Monitor revenue collection26