Holders of customary land can now heave a sigh of relief after the High Court in Blantyre ruled that the Constitution fully protects them and cannot be stripped of ownership based on customary law or cultural practice.
Meanwhile, lawyers, a human rights defender, gender activists and chief have described the ruling as a breakthrough and progressive because it protects the interests of women and children.
The March 19 2020 determination means customary land acquisition will no longer be tied to a particular area’s cultural customs. It also means that any person can own and have rights over the land based on the period of occupancy and usage.
Judge Jack N’riva has stated that once a chief has given customary land to a person, the allocation is permanent and will have to pass through that person’s family generations unless they decide to voluntarily sell or give it away.
Further, the court has directed that women and children cannot be dispossessed of customary land just because they found themselves in the village where the land is located by virtue of marriage or were born out of such marriages.
The ruling now means the court has quashed the common practice that children born from women married under lobola system, mostly used in the Northern Region, cannot inherit land from their mothers’ lineage.
Further, it also means the practice where women married under Lobola system or their children cannot inherit land in the husband’s village has been invalidated by the court.
The ruling is coming against the background of growing customary land disputes some of which have resulted in deaths, injuries and destruction of property between family members or villages.
The determination by the court follows a customary land case involving Mary Manyenje against Manuel Mpingo and Melenia Pondani which started at Namitambo Magistrate’s Court in Chiradzulu.
Manyenje dragged her paternal uncle Mpingo and aunt Pondani for grabbing a piece of her land she had been using for over 20 years after her late mother and grandmother has also used it for 40 years.
Mpingo and Pondani told Namitambo Magistrate’s Court, the land originally belonged to the patrilineal lineage of Manyenje as such she needed to leave it and go back to her mother’s village.
The court ruled in their favour on the ground that the land was in Manyenje’s paternal village and ordered her to cease using it.
But in 2018 Manyenje appealed the matter at the High Court in Blantyre where the lower court’s determination was reversed and the matter decided in her favour.
Among others, Manyenje argued the lower court erred in holding that she be dispossessed of the land after over 20 years of “ownership”, use and occupancy.
She also argued that the lower court erred in holding that under the law the use and occupancy of customary land is tied to the customs of the marriage of her grandfather.
“The lower court erred in failing to recognise that the appellant could not be disposed of a piece of customary land she had been tilling for over 20 years thereby disturbing her use and occupancy and her reliant interest in the land guaranteed under Section 28 of the Constitution,” reads part of the grounds.
And Judge N’riva, in his ruling of the miscellaneous appeal number 86 of 2018, concurred with Manyenje and found the lower court’s trial in error.
The judge argued that such practices contravene people’s right to property under Section 28 of the country’s Constitution.
“In my appreciation of the law, applying constitutional principles, it is not necessary to tie the system of marriage to ownership of land where facts and circumstances of the case dictate otherwise.
“Land acquisition and use has to depend on justice and circumstances of each case. The question of constitutionality of a particular law in the circumstances would obviously arise. Remember that customary law is a recognised source of law so long as it is inconsistent with, and not repugnant to, the Constitution,” reads part of the ruling.
Judge N’riva observed that since Manyenje had used the land for over 20 years after her late mother, grandfather and grandmother, it would not only be unjust to dispossess her but also a breach of her constitutional right to ownership of property.
Reads part of the judgement: “ Therefore, all in all, the only issue is that the appellant was dispossessed of the land based on the lineage of the marriage system. It is not in dispute that the court ruled against the appellant merely based on the fact that the land was under the paternal parents holding [in a matrimonial setup].
“The custom was that the appellant had to own land through maternal lineage. Such an approach to customary law might, once again, end up with unfair and unconstitutional consequences.
“The appellant having used the land for such a long time after taking over the use from her parents had a right to occupancy and use of the land. Dispossessing her based on the type of marriage or system would, in my view, be repugnant to the constitutional right to own property.”
Lawyer Kuleza Phokoso, who represented Manyenje, expressed delight that the court had upheld his client’s position and described the development as “a landmark case.”
“We are happy the court has vindicated this established position of the law and essentially closed the door to the inconsistency and uncertainty of principles governing tenure in customary land brought in by application of customary law,” he said, further observing that customary land remained the largest and vulnerable portion of the country’s land.
“The judgement is, therefore, a long overdue step in the right direction but there are many areas that still need to be addressed.”
In court, Phokoso argued the position of the law was that chiefs may grant use and occupancy rights in customary land to anyone irrespective of the customs prevailing in the area.
Human rights defender and gender activist Beatrice Mateyu described the court determination as a landmark because it protects the interests of women and children.
“Over the years, we have seen thousands of women in dilemmas after being dispossessed of their land on grounds that they own it because of marriage and once the marriage is over they are chased away by their husbands relatives,” she said.