The new Land Law has given government authority to re-enter idle freehold land even in estates, giving hope that the outcry of majority landless villagers in districts of Thyolo, Mulanje and Nkhata Bay, among others, could finally be heard.
Attorney General (AG) Thabo Chakaka-Nyirenda disclosed in a response to a questionnaire that freeholders, as per dictates of the newly-amended law, are required to productively use the land, and if not used for a period exceeding two years, government is empowered to re-enter the land.
But he allayed fears that the law would lead to a Zimbabwe-styled repossession of land by government from estate owners most of whom are foreigners.
“The new land laws here aim at addressing unique social and economic problems that bedevil the country. You may wish to note that land has been unscrupulously allocated to few individuals, the modern day barons, who in turn hold this land for speculative purposes.
“We have people possessing over 100 hectares of land within the city yet this land is idle. With the population boom, many people do not have land at all. You may also wish to acknowledge that land is one of the basic factors of production,” he said.
The new laws, the AG said, are responding to the scarcity of land and resultant land pressure due to overpopulation.
The land law regime, he said, seeks to empower indigenous Malawians who have been vulnerable for decades by allowing them to acquire title to customary land and by providing a level playing field in the acquisition of land in cities and towns.
“The unfortunate incidents of Zimbabwe in which white settlers, mostly British landowners, were arbitrarily dispossessed of their land; without due process and without compensation cannot recur in Malawi.
“Foreigners who have valid land titles in Malawi will still enjoy the rights to use, sell or transfer their land just like any other citizen,” Chakaka-Nyirenda said.
He said Malawi has not repossessed any existing leaseholds but where it expires, then upon renewal, the leaseholder has to show that the land has been developed and is being used as a residential home, commercial or for charitable purposes.
“This applies to any leaseholder whether foreign or Malawian. So in many respects, comparing the Malawi scenario with the Zimbabwe scenario is tantamount to comparing oranges with mangoes,” the AG explained.
He, however, conceded that land ownership by foreigners remains a major issue among African countries and is not unique to Malawi.
The AG said the Land Act in Tanzania is very clear that a non-Tanzanian is not allowed to own land, save for investment purposes under the Tanzania Investment Act.
“According to the spirit of Section 20 of the Customary Land (Amendment) Act, customary estates are not meant to be allocated to non-indigenous Malawians.
A former Cabinet minister well versed in land issues who opted not to be named, said government should be strict on idle freehold land, fearing freeholders of vast acres of land may put up sham activities on the idle land to pool wool in the eyes of government.
“I know there are acres and acres of idle land meant for tea plantations and current owners do not have capacity to develop that land successfully into tea plantations within two years. Government must act on that decisively.
“And I fault the clause in the new law that empowers the Minister of Lands to offer an extension, I guess upon an application by a freeholder, where one has failed to develop an idle land within two years; that clause may promote corruption. That clause is neutralising the law that was meant to safeguard Malawians,” the ex-minister said.
Centre for Democracy and Economic Development Initiatives (Cdedi) executive director Sylvester Namiwa in a response to a questionnaire admitted the new law would help address some of their long-held concerns.
He said:“If the land is idle for two years it will revert to customary land and should be surrendered to the chiefs. Even if it turns out that the land was registered for tea plantations and someone decides to be doing something contrary, the government has the powers to get the land.
“Until this change, there was nothing government could have done on freehold land. This partially addresses our issue since we have land that has been idle for the past 15 years.”
The activist, however, said the battle was still on as Parliament was sitting on an amendment to convert all the freehold land to leasehold land.
Namiwa said his organisation was aware of vast acres of idle land in Thyolo, Mulanje, Nkhata Bay and some parts of the country.
But the AG emphasised that the tea estates are outside the jurisdiction of traditional leaders, therefore, the estates will be unaffected by the new land laws.
He explained that land ownership in Malawi is categorised into customary (communal), freehold, private land registered under the Registered Land Act and leasehold.
Customary land (Communal land), he further explained, is land that is owned by the community and in a strict sense no person has the right of alienation.
“Holders of customary land are in real sense not owners of communal land. They only have the right of use. Customary land is held in trust for the community as a whole.
“Holders of communal land are those who inherited land or were allocated land in communities where either the village head or the family head had allocated land. An allocated of customary land by either a traditional leader or headman can validly sell it,” he said.
Chakaka-Nyirenda said over 80 percent of the land in Malawi is customary. He said the leaseholders have fixed period of use and possession of land and are required to pay some annual token rent to the landlord.
Although the Customary Land (Amendment) Act prohibits the foreigner’s acquisition of customary estate, the AG said, foreigners who before the enactment of the Customary Land (Amendment) held legal title to customary estate would be unaffected by the new legislation.
“This is so because the law only operates prospectively. Following the coming into force of the new legislation transfer of customary estate to foreigners would be null and void,” the AG said.
The AG said section 39 of the Land Act now requires every holder of private land under freehold title to develop the land within two years after the coming into force of the new Act, failing which the Minister of Land shall be allowed to enter the Land and register the freehold title in the name of Government, unless the minister grants an extension of the time.
The new law describes an indigenous Malawian as a person who is a citizen of Malawi and can trace their descent from any of the ethnic groups in Malawi.
The National Assembly passed the Land (Amendment) Bill of 2022 on March 25 2022 and President Lazarus Chakwera, on April 2 2020, assented to the Bill alongside five different other Bills.
The passing of the Land Bill and assenting to the Land Bill by the President gave hope to Malawians that it would resolve concerns Malawians have had over land for a long time.