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Resilience of the Status Quo: the Sad Story of the Zambian Lands Bill, 1994

Published online by Cambridge University Press:  28 July 2009

Moses Kaunda
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Extract

In the period since the Movement for Multi-party Democracy (MMD) was voted into government in 1991 by an overwhelming majority, the Lands Bill, 1994 (hereafter referred to as “the Bill”) easily stands out as the most publicly discussed piece of proposed legislation. When the Bill was introduced to Parliament debate was deferred sine die because most members of Parliament (MPs) demanded more time to examine its provisions and consult over proposed changes. Postponement was followed by a one-day seminar on die Bill organized by the Ministry of Legal Affairs. Thereafter, the government initiated a programme to explain the Bill to the public: on 29 September, 1994, a chiefs' workshop was arranged at Mulungushi International Conference Centre, Lusaka, but this came to nothing because invited chiefs did not attend. Then the government conceived provincial programmes for die public discussion of the Bill, but diese were then postponed indefinitely, as explained below.

Type
Articles
Information
Journal of African Law , Volume 39 , Issue 1 , Spring 1995 , pp. 87 - 92
Copyright
Copyright © School of Oriental and African Studies 1995

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References

1 No cogent ideas can be said to have emerged from the seminar as no resolutions were adopted. The participants agreed to treat the seminar only as a “brain-storming” exercise. However, some individual participants made fascinating contributions which are worth noting, and some of these are referred to below.

2 The Permanent Secretary for the Ministry of Lands explained that chiefs did not attend the workshop because “someone” failed to deliver invitation letters. See Times of Zambia, 30 September, 1994, 1.

3 The programme anticipated holding public meetings at eight of the nine provincial headquarters; Lusaka was excluded possibly because activities to explain the Bill had already taken place there. For the advertised programmes see Times of Zambia, 3 October, 1994, 11.

4 The official reason given by the Minister of Lands for putting off the programmes was “to give people more time to debate [the Bill]”. (See Zambia Daily Mail, 13 October, 1994, 1.) We think that, as will become clear later, the real reason was the hostile reception that the Bill attracted at the public meetings so far held.

5 S. 31(1) of the Bill provides that the Land (Conversion of Titles) Act is hereby repealed. The Bill also seeks to repeal other laws set out in its schedule: the Zambia (State Lands and Reserves) Orders, 1928 to 1964; the Zambia (Trust Land) Orders 1947 to 1964; the Zambia (Gwembe District) Orders, 1959 to 1964; and the Western Province (Land and Miscellaneous Provisions) Act, 1970. Sees. 31(2).

6 Thus the 1975 Act was, inter alia, meant to remedy the scourge of exorbitant prices for vacant State Land. See Mvunga, M. P., The Colonial Foundations of Zambia's Land Tenure System, Lusaka, 24.Google Scholar

7 Even before the 1975 Act was passed, the ruling and only legal party at the time, the United National Independence Party (UNIP) had earlier promised in its 1973 election manifesto to convert freehold tides to leaseholds for terms of 99 years. See UNIP, National Policies for the Next decade 1974–1984, Lusaka, 1973, 36–37.Google Scholar

8 Following Statutory Instrument No. 7 of 1964 and Gazette Notice No. 1345 of 1975, the powers of the President in land matters were delegated to the person performing the function of Commissioner of Lands.

9 For a review of the judicial interpretation of s. 13, see Kaunda, M., “Application of the Land (Conversion of Titles) Act to customary lands: a critique of the judgment in Datson Siulapwa v. Faless Namusika” in (1987) 19 Zambia Law Journal, 62–70.Google Scholar

10 Although what was granted was a discretion, in practice consideration was officially fixed in every case.

11 “Unexhausted improvement” is defined as “anything resulting from the expenditure of capital or labour and includes the carrying out of any building, engineering or other operations in, on, over or under land, or the making of any material change in the use of any building”, (s. 3 of the 1975 Act).

12 See Kaunda, above, n. 9, 67–68.

13 Land Circular No. 1 of 1985 issued by the Ministry of Lands and Natural Resources and entitled “Procedure on land alienation” provides for chiefs’ consent before alienation, on leasehold, of land in Reserves and Trust Land (basically rural areas). This circular was substantively adopted by the MMD government when they issued a “Notice on Administrative Procedures on Land Allocation”. See Times of Zambia, 20 May, 1992.

14 See respectively, ss. 13(1) of the 1975 Act and s. 5 of the Bill; s. 7 of the 1975 Act and s. 10 of the Bill; and s. 20 of the 1975 Act and s. 9 of the Bill.

15 It is government policy to encourage emergent farmers in rural areas to obtain title deeds. See Kaunda, M., “Land policy in Zambia: evolution, critique and prognosis”, unpub. Ph.D. thesis, University of Cambridge, 1993, 259–260.Google Scholar

16 If an applicant for consent does not receive a reply within 14 days of applying for it, consent will be deemed to have been granted (s. 5(2)). This is meant to expedite land transactions previously held over by delays in granting consent.

17 S. 4 of the Bill provides thus: “From the commencement of this Act, land in Zambia shall have value”. This can be interpreted to mean that even undeveloped land can be bought and sold in the land market, unlike the case under the 1975 Act.

18 See Government of the Republic of Zambia, Ministry of Finance, New Economic Recovery Programme. Economic and Financial Policy Framework 1992–1994, 1992, 1.

19 For example, a University of Zambia lecturer wrote to MPs from Southern Province advising them to reject the Bill until government agreed to give chiefs State land which they (chiefs) were reclaiming. See Times of Zambia, 10 October, 1994, 1.

20 This can be illustrated by the contribution of Akashambatwa Mbikushita-Lewanika M.P. to the Seminar on the Lands Bill held on 23 September, 1994, at the Pamodzi Hotel, Lusaka. The MP, inter alia, submitted that “the people of Zambia are not being told what is contained in the Orders in Council that will be repealed”. (See Report of the Proceedings of the Lands Bill Seminar, 16.) The suspicion can further be illustrated by a letter written to the Times of Zambia entitled “Lands Bill has hidden agenda”, which stated, inter alia, that “There is more to the Lands Bill than meets the eye. At face value, the Bill is a veiled and feckless attempt by the MMD Government at reforming Zambia's complex dual land tenure system and at worst a cleverly contrived and craftily hatched scheme to introduce free land holding in Zambia by default or through the backdoor”. See Times of Zambia, 26 September, 1994.

21 Thus, chiefs in Eastern Province walked out of the Seminar on the Land Bill saying they did not want changes to the existing land laws (Times of Zambia, 8 October, 1994, 1). Seven chiefs from the Copperbelt Province had also earlier walked out of a similar meeting because they had been given insufficient time to study the document (Bill) and they requested the government to translate proposals into local languages (Times of Zambia, 7 October, 1994, 1). Chiefs in Northern Province emulated their counterparts and went a notch higher by throwing all documents relating to the Bill back to the officer from the Ministry of Lands (Times of Zambia, 12 October, 1994, 1).

22 The Minister of Lands' entourage was stoned when they arrived at Lealui where they went to discuss the Bill with the Litunga or King of the Lozi people. On arrival, the Indunas (Councillors) informed the Minister that they had already resolved to reject the Bill. See Zambia Daily Mail, 11 October, 1994, 1.

23 Some of the arguments are usual whenever individualization or conversion of customary lands o t statutory interests is discussed. For general arguments against individualization, see Kaunda, M., “Land law reform in Zambia—direction for change”, unpub. M.Phil, thesis, University of Cambridge, Department of Land Economy, 1986, 89.Google Scholar

24 See Report of the Proceedings of the Land Bill Seminar held at Pamodzi Hotel on 23 September, 1994, 24 and 28.

25 Ibid., 24–25.

26 For the restriction against aliens and also for die exceptions, see the Land (Conversion of Titles) (Amendment) (No. 2) Act No. 15 of 1985.

27 Above, n. 13, 3.

28 Tunes of Zambia, 30 September, 1994, 1.

29 See an address by the President of the Republic of Zambia, Mr Frederick J. T. Chiluba, to the Nation on the eve of the 30th Anniversary of Zambian Independence on 23 October, 1994 (as published in Times of Zambia, 24 October, 1994).

30 Ibid.