FACTSHEET: LAND RIGHTS

Transcription

1 FACTSHEET: LAND RIGHTS 1) What land system does Zambia have? Land is everything that is on the surface and under the surface of the earth. Land thus means: The water The trees The soils Wild animals Minerals Buildings built on and permanently attached to the soil As over 80 percent of the rural population of Zambia depends on agriculture-related activities for their livelihood (SNDP, p. 108), such as subsistence or small-scale farming, access to land is of utmost importance. The land system in Zambia is a dual tenure system consisting of statutory land tenure and traditional/customary land tenure. Traditional/Customary land, (figures suggest between sixty-six and ninety-five percent of customary land in Zambia. Figures on how much customary land exists are blurred as customary land can be converted to state land), is land controlled by chiefs. Zambia has 73 tribes with 286 chiefs inclusive of 38 senior chiefs and four paramount chiefs. Through their headmen and other traditional structures chiefs allocate land, regulate transfers of land and control the use of it. Though it is not defined what customary tenure is in the Zambian laws, it is recognized as a form of landholding. Customary land is based on unwritten customary land laws. As such, customary law varies substantially from place to place and a lack of national guidelines on customary land administration means that each chiefdom administers customary land according to prevailing traditional norms, customs and cultural practices. Thus, people holding customary land do not have title deeds (although some District Land Alliances have started to promote the idea of Traditional Land Holding Certificates see Information on what civil society organisations are doing). The non-existence of legal titles for customary land leads to insecurity of tenure. For example, this becomes complicated in cases such as boundary disputes as people can t prove how much land was allocated to them by the chief. State land is land that is held and controlled by the government and is administered in accordance with written laws. The president in turn has delegated land administration to the Commissioner of Lands, who is the head of the Lands Department within the Ministry of Lands, Natural Resources and Environmental Protection. The Ministry of Lands, Natural Resources and Environmental Protection is charged with the responsibility of land administration which include:

2 Land Policy Land surveys and mapping Land and Deeds Registry and Provision of land for all purposes. The Survey Department, headed by the Surveyor General, is responsible for land surveys and mapping; land registration is dealt with by the Land and Deeds Registry headed by the Chief Registrar. The Lands Department is charged with the responsibility of land administration and alienation and is headed by the Commissioner of Lands. In addition to the functions highlighted above, the Ministry is also responsible for the following statutory bodies: Lands Tribunal; and Survey Control Board. State land is secured by a title deed under what is known as leasehold tenure, which runs for 99 years and is renewable (under certain circumstances) for a further 99 years. Land in this tenure system is registered and clearly defined in terms of clear boundaries. State land can be acquired through: Direct leases from the President and Conversion of land held under customary tenure to statutory leasehold. Procedures for Alienation of Land under circular number of 1985: This Circular lies down the guidelines regarding the procedure all District Councils are expected to follow in the administration and allocation of land. The authority to consider applications for land allocation from members of the public is vested in the President of Zambia who has delegated this authority to the Commissioner of Lands An applicant for land has in terms of Circular Number 1 of 1985, an option either to apply directly to the Commissioner of Lands, or to apply through a Local Authority which has been delegated powers to receive applications for land from members of the public Where a member of public opts for the second route, a Local Authority is mandated to advertise any land available, receive applications from members of the public and make recommendation to the Commissioner of Lands The powers to allocate land and make offers to successful applicants is reposed in the Commissioner of Lands.

3 The conversion of customary land to leasehold tenure In terms of the Lands Act of 1995, any person who holds land under customary tenure may convert it into a leasehold tenure not exceeding 99 years on application. Conversion of land from customary tenure to statutory tenure can only take place after the approval of the chief, the Local Council, and (if the land is in a Game Management Area) the Director General of the Zambian Wildlife Authority (ZAWA). If the chief refuses the conversion s/he must communicate the reasons to the Commissioner of Lands. If the chief gives permission, s/he sends a form to the Local Council confirming both the applicant s status and that the rights of others are respected. The Council then makes a recommendation for acceptance or rejection to the Commissioner of Lands. The Commissioner of Lands has the final decision over the conversion. A sketch plan of the land to be converted needs to be created before the conversion process can be embarked on. The Council may also apply in the interests of the community for the conversion of a particular parcel of land, held under customary tenure into a leasehold tenure. A person aggrieved by a decision of the Commissioner of Lands may appeal to the Lands Tribunal (see below). If a mining company wants to develop a mine on land held under customary tenure, the consent of the local chief is required before the land can be converted to statutory leasehold and transferred to the mining company. If the local chief denies the conversion of customary land to statutory leasehold the Mines and Minerals Development Act provides for Government to intervene to decide over this matter. This means, even if the local chief and the community are against the transfer of land to the mining company, they can be overruled. Nevertheless, the mining company is required to act responsibly and to pay fair and reasonable compensation if mining operations damage crops, trees or buildings belonging to others. For example the Environmental Management Act, 2011 clearly states that citizens are empowered to seek compensation and can report to public officers of the Zambia Environmental Management Agency (ZEMA). Furthermore, mining companies are obliged to fulfill certain conditions for the protection of environment and human health. More information can be found in the thematic area on Environment and Natural Resources. Land in a Housing (Statutory and Improvement) Area: The Housing (Statutory and Improvement Areas) Act regulates tenure in Statutory Areas (site and service areas) and in Improvement Areas (former squatters/illegal settlements that have been legalized). People living in Statutory Areas can be issued with a Council Certificate of Title, valid for 99 years. In Improvement Areas, inhabitants are issued with Occupancy Licenses or land records, which are valid for 30 years. For more information on housing in these areas, click here. Customary land: The way to acquire customary land can differ from province to province. The chief and headman/traditional authority play the role of control and regulation in the acquisition of customary land and its use. Generally, the right to acquire land under customary tenure in Zambia vests in individuals by reason of their being legitimate residents in a given area within which they exercise these rights of acquisition. Once the requirements relating to legitimate residence are satisfied individuals may acquire land in a number of ways including;

4 Direct Acquisition An individual may acquire land by opening up and using a parcel of land over which no individual has already prior established rights, or if any earlier established rights have already elapsed or been abandoned in respect of such piece or parcel of land. This is still the most usual method of acquiring land under customary tenure in Zambia. Transmission and Succession Generally under customary tenure in Zambia the individual s holding does not come to an end at his/her death. The same is inheritable by kinsmen depending on the customary law of the area or district. Transfer Inter vivos An individual who has already rights over a parcel of land may transfer those rights to another in any of the following ways: (i) (ii) (iii) Temporary transfer by way of loan of the land; or Outright transfer by way of gift or exchange, or Sale A holder of land under customary tenure may apply for the conversion of his holiday into leased by way of a grant of a certificate of title. Buying and selling land between individuals: To sell titled land the owner has to apply for state consent to the Ministry of Lands. If the Commissioner of Land gives his/her consent, a certificate of title is then given to the seller. Before a certificate of title is granted or issued there is a requirement to pay Property Transfer Tax to the Zambia Revenue Authority (ZRA), currently at 10% of the value of the property. The buyer is supposed to conduct a land search with the Registrar of Lands and Deeds in the Ministry of Lands. The Registrar of Lands will assure that no one else owns this land People, who want to buy land from an individual, can ask the Ministry of Lands or the Agriculture Office or the Land alliance for advice.

5 Rights to land in Zambia for land-holders: If you hold land under customary law, you are allowed to erect a building on it, use it for growing crops etc. If you hold land under leasehold tenure, you have to get a building permit from the local authority to erect a building. To get such a building permit, people have to hand in copies of their title deeds, application forms and building plans. If you hold land under leasehold tenure, you are allowed to restrict someone from building on this piece of land, whereas this is not valid for land held under customary law. To sell or lease the property which is erected on a piece of land. To graze livestock or grow crops on a piece of land that was assigned to you by the chief or state land that you are leasing. To offer the land as security against a loan, which will then have to be passed over to the lender if the owner cannot repay what was borrowed. This is only applicable to state land. Where a land owner has no rights: A land owner has no ownership of water which flows or percolates through his/her land. This means for example that the owner can t build a dam that blocks the water, but s/he is allowed to use as much water as desired Wild animals even when they are on your piece of land cannot form the subject matter of ownership The land owner cannot restrict anyone from travelling over the airspace. Women s land rights: According to statutory law, women in Zambia can apply for any land in any part of the country, just like their male counterparts. In rural areas, usually married women have access to land for farming through their husbands. In the event of divorce or widowhood: If the husband dies without leaving a Will and if he held state land, the Intestate Succession Act regulates that the surviving spouse, inherits 20 per cent of the deceased s estates, including land, and together with the children, the house. This Intestate Succession Act is not applicable to customary land. If the deceased husband held customary land, the widow may be permitted to continue to use the land. But it can also happen that the widow is evicted from the land by the relatives of the deceased. Lands Tribunal: In case land disputes occur, the land tribunal, a quasi judicial institution, can be addressed. The land tribunal was initially established through the Lands Act, 1995 but its functions broadened through the Lands Tribunal Act, The Tribunal presents a fasttrack method of resolving land disputes. The Tribunal may sit as a circuit tribunal. The Tribunal has jurisdiction to hear and determine disputes relating to land and in particular: To inquire into, and make awards and decisions in, any dispute relating to land under the Lands Act, the Lands and Deeds Registry Act, the Housing (Statutory and Improvement Areas) Act or any other law To inquire into, and make awards or decisions in, any dispute relating to land under customary tenure

6 To inquire into, and make awards or decisions relating to, any dispute of compensation to be paid in relation to land under the Lands Act, the Lands Acquisition Act or any other law; To inquire into, and adjudicate upon, any matter affecting the land rights and obligations, under the Lands Act, of any person or the Government To hear and determine appeals against a direction or decision of a person in authority relating to land under the Lands Act, the Lands and Deeds Registry Act, the Housing (Statutory and Improvement Areas) Act or any other law To make orders for the rectification of entries made in the Lands Register To make orders for the cancellation of certificates of title that it considers to have been erroneously issued or to have been obtained fraudulently, or that it otherwise considers necessary to cancel To make any declaration that it considers appropriate and issue any order for the implementation of the declaration Subject to the State Proceedings Act, to grant injunctive relief or any other interlocutory relief that it considers appropriate; and To perform such acts and carry out such functions as may be prescribed under any other written law. Types of customary lands disputes include, for example, boundary disputes, ownership disputes, disputes between locals and investors over conversion of land and tenure status. The tribunal consists of the following members, who are appointed by the Minister responsible for land: Chairman, who is a legal practitioner of not less than seven years of experience Deputy Chairman, who is a legal practitioner of not less than seven years of experience An advocate from the Attorney General s Chambers, who should be a legal practitioner of not less than seven years of experience A representative of the Law Association of Zambia of not less than seven years legal experience A representative of the House of Chiefs A registered town planner A registered land surveyor A registered valuation surveyor Not more than three people from the public and private sectors. Any member of the Tribunal who has a direct/ indirect personal interest in the case being heard is not allowed to sit on the ruling board of that case. A person aggrieved with the decision of the Tribunal may within thirty days of receipt of its decision, appeal to the High Court

7 2) Which land rights do people in Zambia have? Rights to land in Zambia for land-holders: If you hold land under customary law, you are allowed to erect a building on it, use it for growing crops etc. If you hold land under leasehold tenure, you have to get a building permit from the local authority to erect a building. To get such a building permit, people have to hand in copies of their title deeds, application forms and building plans. If you hold land under leasehold tenure, you are allowed to restrict someone from building on this piece of land, whereas this is not valid for land held under customary law. To sell or lease the property which is erected on a piece of land. To graze livestock or grow crops on a piece of land that was assigned to you by the chief or state land that you are leasing. To offer the land as security against a loan, which will then have to be passed over to the lender if the owner cannot repay what was borrowed. This is only applicable to state land. Where a land owner has no rights: A land owner has no ownership of water which flows or percolates through his/her land. This means for example that the owner can t build a dam that blocks the water, but s/he is allowed to use as much water as desired Wild animals even when they are on your piece of land cannot form the subject matter of ownership The land owner cannot restrict anyone from travelling over the airspace. Women s land rights: According to statutory law, women in Zambia can apply for any land in any part of the country, just like their male counterparts. In rural areas, usually married women have access to land for farming through their husbands. In the event of divorce or widowhood: If the husband dies without leaving a Will and if he held state land, the Intestate Succession Act regulates that the surviving spouse, inherits 20 per cent of the deceased s estates, including land, and together with the children, the house. This Intestate Succession Act is not applicable to customary land. If the deceased husband held customary land, the widow may be permitted to continue to use the land. But it can also happen that the widow is evicted from the land by the relatives of the deceased. Lands Tribunal: In case land disputes occur, the land tribunal, a quasi judicial institution, can be addressed. The land tribunal was initially established through the Lands Act, 1995 but its functions broadened through the Lands Tribunal Act, The Tribunal presents a fasttrack method of resolving land disputes. The Tribunal may sit as a circuit tribunal. The Tribunal has jurisdiction to hear and determine disputes relating to land and in particular:

8 To inquire into, and make awards and decisions in, any dispute relating to land under the Lands Act, the Lands and Deeds Registry Act, the Housing (Statutory and Improvement Areas) Act or any other law To inquire into, and make awards or decisions in, any dispute relating to land under customary tenure To inquire into, and make awards or decisions relating to, any dispute of compensation to be paid in relation to land under the Lands Act, the Lands Acquisition Act or any other law; To inquire into, and adjudicate upon, any matter affecting the land rights and obligations, under the Lands Act, of any person or the Government To hear and determine appeals against a direction or decision of a person in authority relating to land under the Lands Act, the Lands and Deeds Registry Act, the Housing (Statutory and Improvement Areas) Act or any other law To make orders for the rectification of entries made in the Lands Register To make orders for the cancellation of certificates of title that it considers to have been erroneously issued or to have been obtained fraudulently, or that it otherwise considers necessary to cancel To make any declaration that it considers appropriate and issue any order for the implementation of the declaration Subject to the State Proceedings Act, to grant injunctive relief or any other interlocutory relief that it considers appropriate; and To perform such acts and carry out such functions as may be prescribed under any other written law. Types of customary lands disputes include, for example, boundary disputes, ownership disputes, disputes between locals and investors over conversion of land and tenure status. The tribunal consists of the following members, who are appointed by the Minister responsible for land: Chairman, who is a legal practitioner of not less than seven years of experience Deputy Chairman, who is a legal practitioner of not less than seven years of experience An advocate from the Attorney General s Chambers, who should be a legal practitioner of not less than seven years of experience A representative of the Law Association of Zambia of not less than seven years legal experience A representative of the House of Chiefs A registered town planner A registered land surveyor A registered valuation surveyor Not more than three people from the public and private sectors. Any member of the Tribunal who has a direct/ indirect personal interest in the case being heard is not allowed to sit on the ruling board of that case. A person aggrieved with the decision of the Tribunal may within thirty days of receipt of its decision, appeal to the High Court

9 3) Which laws and policies govern land administration in Zambia? Article 16 of the Zambian constitution provides protection against deprivation of property. Sixth National Development Plan (SNDP) : states that land administration and management continue to be a challenge. To tackle the problem of gender issues in access to land the SNDP promotes the review and harmonization of customary and statutory land ownership laws, procedures and administrative practices. It also says that an environment that is conducive to investment under customary land tenure system should be created. Guidelines on the resolution of succession and boundary disputes shall be developed and capacity building programmes for conflict resolution at chiefdom level shall be developed and implemented. The Lands Act, 1995: regulates the land rights and the tenure in Zambia. According to the Lands Act, all land in Zambia is vested in the President for and on behalf of the people of Zambia, which means that it is controlled and administered by the President for the use or common benefit, direct or indirect, of the people of Zambia. The Act further set up the Land Development Fund to promote land acquisition and development, it regulates the conversion of customary land to leasehold and set up the Lands Tribunal, which is responsible for dealing with land disputes. The Lands Act repeals the Land (Conversion of Titles) Act; 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, The Lands Tribunal Act, 2010: Although the Lands Tribunal was initially established through the Lands Act, the Lands Tribunal Act continues the existence of the Lands Tribunal, provides for its powers and functions and broadens its jurisdiction over matters arising under the Housing (Statutory and Improvement Areas) Act. The Lands Acquisition Act, 1970: This Act allows the President to acquire land whenever s/he is of the opinion that it is desirable or expedient in the interests of the Republic to acquire that particular piece of land. As a general rule, the affected land holder is entitled to compensation for the property that has been acquired by the President. The Land Survey Act, 1960: This Act makes provision for the registration and licensing of land surveyors and the carrying out of land surveys. To get a title deed, the land needs to be surveyed. It also establishes the Survey Control Board, which is responsible for the registration and licensing of land surveyors and for the exercise of disciplinary control over such surveyors. The Lands and Deeds Registry Act, 1914: It provides for the establishment of the Registry of Deeds by the Minister responsible for land, which requires that every document purporting to grant, convey, or transfer land or any interest in land, be registered. This Act was amended last in 2010 by Act No. 40 of The Mines and Minerals Development Act, 2008: This Act states that all rights of ownership in, searching for, mining and rights to disposing of, minerals wherever located in the Republic are vested in the President on behalf of the Republic. No person shall prospect for minerals or

10 carry on mining operations or mineral processing operations except under the authority of a mining right or mineral processing licence. The Act provides for the granting of the following mining rights: (a) a prospecting licence; (b) a large-scale mining licence; (c) a large-scale gemstone licence; (d) a prospecting permit; (e) a small-scale mining licence; (f) a small-scale gemstone licence; and (g) an artisan s mining right. DRAFT Land Policy, 2006: This draft of the National Land Administration and Management Policy, developed by the Ministry of Lands (now Ministry of Lands, Natural Resources and Environmental Protection) in 2006, is still a working document. The Ministry of Lands has postponed any further changes to legislation concerning land tenure until a final version of the national constitution is approved by Parliament ( Some of the document s guiding principles are: Facilitate the equalisation of rights of all the people of Zambia to land through accountable and transparent land registration, adjudication and achievement of guaranteed justice Provide a policy framework for addressing poverty reduction, gender equality and mitigation of HIV/AIDS in land administration Facilitate and regulate orderly land market transactions, land development and use. The National Agricultural Policy : promotes that availability and accessibility to land for agriculture and development of infrastructure in potentially productive agricultural areas should be facilitated. The Ministry of Agriculture and Livestock works closely with the Ministry of Lands, Natural Resources and Environmental protection, also on facilitating efficient land administration. The Lands (Customary Tenure) Conversion Regulations, 1996: The regulations made pursuant to the Lands Act specify the procedure on conversion of customary tenure into leasehold tenure (see above: What land system does Zambia have?) Administrative Circular No 1, 1985: This Circular allows District Councils to participate in the administration of land. All District Councils are responsible, for and on behalf of the Commissioner of Lands, for the processing of applications, selecting of suitable candidates and making recommendations as may be decided upon by them.

11 4) Civil society organization s work on land rights A lot of CSOs in Zambia work on the issue of land/land rights. For example, Petauke District Land Alliance (PDLA) and Monze District Land Alliance (MDLA) produced customary land administration guidelines. PDLA also developed a Traditional Land Holding Certificate (TLHC). TLHC s have been developed to overcome the traditional practice of distributing customary land on the basis of an oral agreement between the chief and the landholder concerned. The certificates carry the name of the landowner, the relevant headperson, and the area chief s signature and official stamp; they also have a field or property site plan attached and details of conditions under which the TLHC will operate. TLHCs have now been recognised by local courts as evidence of ownership. The Zambia Land Alliance (ZLA), the umbrella organization of 8 District alliances, developed together with We Effect some material on study circles on land rights. The ZLA members also have drop-in centres, where people can seek advice regarding land rights.