LAND GOVERNANCE IN MALAWI Edward Chikhwenda, Bester Kasowanjete, - - PDF document

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LAND GOVERNANCE IN MALAWI

Patrick Kambewa,Regson Chaweza Edward Chikhwenda, Bester Kasowanjete,

¡ INTRODUCTION ¡ INSTITIONAL FRAMEWORK ON LAND GOVERNANCE ¡ LEGAL FRAMEWORK ON LAND TENURE ¡ LAND DISPUTE RESOLUTION ¡ VALUATION AND TAXATION ¡ LAND USE PLANNING CONTROL ¡ MANAGEMENT OF PUBLIC LAND ¡ LAND INFORMATION ¡ LAND GOVERNANCE CHALLENGES

PRESENTATION OUTLINE

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INTRODUCTION

Lan Land Are Area 94,080 k km2 Wa Water Are Area 24,404 km2 To Total Are Area 118,484km2 Po Population 18,570,321 Po Population De Density ty 197.39/km2 Go Government Ty Type Presidential Republic GD GDP (P (PPP) $21.20 Billion GD GDP Pe Per Ca Capita 1,100$

¡ Malawi land locked formerly Nyasaland (1891 to 1964) ¡ Early inhabitants were nomads ¡ Land use characterised by conquest ¡ 1884, Berlin Conference defined the current boundaries ¡ 1891 Nyasaland became British Protectorate ¡ Introduction of dualism of land tenure ¡ Categories of land: Crown, Native Trust, Private ¡ Certificate of Claim used to convert NTL into Private.

BACKGROUND

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¡ At Independence, land was categorised as Public, Customary and Private(Leasehold, Freehold) ¡ Malawi was under one party system from 1964 to 1994 ¡ After attaining multiparty system Commission of Inquiry on Land Reform established. ¡ Malawi National Land Policy passed in 2002. ¡ In 2016 Land Bills passed by Parliament ¡ In 2017 The President assented the Bills

BACKGROUND

¡ Original land administered based on tribal groupings ¡ 1891 marked the introduction of British Legal system ¡ Traditional versus western models resulted in conflicts ¡ Attempts to resolve land issues resulted in several commissions of inquiry ¡ Despite challenges over time, land management and administration is at three levels ¡ Levels include: 1.Central Government 2. Local Government and 3. Traditional level

INSTITUTIONAL FRAMEWORK ON LAND GOVERNANCE

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INSTITUTIONAL FRAMEWORK ON LAND GOVERNANCE

Estates & Valuation Minister of Lands Housing and urban Development Deputy Minister of Lands Housing and urban Development Principal Secretary Principal Secretary II Lands and Valuation Department Surveys Department Valuation Services Home Ownership Scheme Land Surveying Services Hydrographic & Aeronautic Services Mapping Services Urban Development Department Physical Planning Department Housing Department Legal Services Estate Management Services Management & Support Services Rural Housing Urban Housing Urban Infrastructure Development Control Forward Planning

§ MLHUD responsible policy formulation and implementation § Local authorities responsible for implementing land related policies § Local authorities governed by the decentralisation policy § Other ministries involved in land management and administration e.g Ministry of Agriculture, Ministry of Irrigation and Water resources, Transport and public Works etc § Institutional overlaps exist due to inconsistencies in policies

INSTITUTIONAL FRAMEWORK

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§ Historically authority to allocate land was vested in community leaders § The British brought the deeds registration system as early as 1916. § Land administration during colonial era was based on British Land Law § 1892 African Orders in Council formulated to facilitate the acquisition and granting land rights § 1894 Land Survey Regulations- urban land management § 1896 Land Sales regulations –purchase and leasing of land § 1898 Africa(Acquisition of Lands) Order in Council-to mandate courts in Malawi to adopt British Common law

LEGAL FRAMEWORK ON LAND TENURE

§ 1965 Land Bill-recognised land as country’s greatest asset § Land Act of 1965- Categorised land as Public, Customary and Private(Leasehold & Freehold) § Public Land-occupied used or acquired by the government § Customary Land-all land held, occupied or used under customary law § Private Land-owned, held or occupied under freehold or leasehold or certificate of claim § Land Registration Systems include private conveyancing, deeds registration and title registration system. § Deeds registration based on Deeds registration of 1916 § Title Registration is/was based on Registered Land Act of 1967(Lilongwe,Blantyre,Mzuzu, Zomba and Karonga)

LEGAL FRAMEWORK ON LAND TENURE

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q18th March 1996-Presidential Commission of Inquiry Land Policy Reform q2002 National Land Policy adopted (through consultative process) qMalawi Land Reform Programme Implementation Strategy developed to translate NLP recommendations into actions q2016 Land Bills passed in Parliament q2017 Land related Acts assented and Gazetted qLand Act of 2016 aimed at harmonizing existing legal framework with the aspirations of Malawi National Land Policy qLand Act of 2016 has redefined Public Land and Private Land qCustomary Land Act of 2016 has been introduced.

LEGAL FRAMEWORK ON LAND TENURE LEGAL FRAMEWORK ON LAND TENURE

LAND CLERK

LOCAL GOVERNMENT TRADITIONAL AUTHORITY GROUP VILLAGE HEADMAN GROUP VILLAGE HEADMAN GROUP VILLAGE HEADMAN LAND ALLOCATION COMMITTEE LAND ALLOCATION COMMITTEE LAND ALLOCATION COMMITTEE DISTRICT LAND TRIBUNAL DISTRICT LAND TRIBUNAL CENTRAL GOVERNMENT LAND TRIBUNAL LAND TRIBUNAL VILLAGE HEADMAN INDIVIDUALS INSTITUTIONS CORPORATE BODIES CENTRAL LAND BOARD CENTRAL LAND BOARD

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LAND ALLOCATION PROCESS

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§ Ambiguity of management of responsibility of different types

• f public land

§ Several actors are involved in land management § Prior the passing of Customary Land Act of 2016 traditional authorities were involved in land dispute resolution § Tribunals at three levels(TA,District and National) § In the past multiple players(chiefs, District Commissioners) § Chiefs recognised under customary land § Community based system were equitable but had limited/no recognition in the formal judicial system. § In rural areas common disputes are inheritance/famaly followed by boundary/trespass disputes

LAND DISPUTE RESOLUTION

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LAND DISPUTE RESOLUTION

¡ Formal judicial system include magistrate, high court, appeal courts ¡ Procedure exists for appeal in land cases ¡ Costs are high and take too long and may never be concluded ¡ Arbitration and mediation are other procedures used to solve disputes ¡ Land disputes account for less than 10% of total cases in the formal system ¡ Property taxes assessed based on Quinqenial Valuation Roll and Supplementary Valuation Roll ¡ Local Councils are responsible for tax collection ¡ Failure to collect taxes due to lack of capacity and resources ¡ Land tax is based on market prices ¡ Accessibility to valuation rolls because centrally kept ¡ Annual tax collections depend on amount of ratable value, rate levy and rate collection efficiency ¡ Challenges include under collection due to delays in renewal

• f valuation rolls and lack of capacity to enforce compliance.

¡ Parishes, churches and cemeteries are exempted from property tax while schools and hospitals are on half rate.

VALUATION AND TAXATION

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¡ QVR is mainly applicable in urban areas ¡ In urban areas, informal and newly urbanised areas are also excluded ¡ Councils fail to control new developments in urban areas ¡ Lack of information on the number of properties in their jurisdiction ¡ Only 12 out of 38 local government areas are declared ratable areas ¡ Low compliance by property owners to pay taxes result in the whole process of tax collection to be very high.

VALUATION AND TAXATION

¡ Land use planning framework & process

§ Physical Planning acts (1988) & (2016) provides for inclusive planning process however;

§ Institutional framework is generally centralized, i.e. decentralization of the sector is slow § The composition of relevant governance structures, i.e. planning committees, are experts dominated § The system continues to be marred with structural issues such as;

§ Inadequate human and financial capacity § Persistence of the view that planning is a technical undertaking § Inadequate political will to support the implementation of laid down regulations, i.e. Physical Planning Guidelines and Standards

LAND USE PLANNING & CONTROL

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¡ Delivery of services, development permits & land use control

§ The main deliverables of this system are;

§ Planned and inclusive settlements § Timely issued development permits § Economically productive urban systems

§ However it has been observed that in practice the situation is as follows;

§ Delayed issuance of development permits, i.e. months after the specified period of 30 days § In 2011 about 70 per cent of the urban population in Blantyre city & elsewhere lived in unplanned/informal settlements § Majoring of the urban residents in cities of Malawi earn their income from the informal sector where security of land tenure is a major issue

LAND USE PLANNING & CONTROL

¡ Cl Climate change & envi vironmental management

§ The role of planning in dealing with issues of climate change and environmental management is rarely recognized

§ Most unplanned settlements mushrooming in cities of Malawi are located in environmentally sensitive areas, i.e. floodplains & river banks

§ This is caused in part by;

§ Poor monitoring and enforcement of approved plans § Lack of access to serviced land by the urban poor § Questionable land use decisions on the part of potential developers where economic considerations override disaster risk concerns

LAND USE PLANNING & CONTROL

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¡ Malawi has developed a comprehensive institutional and legal framework ¡ However, there is lack or limited enforcement ¡ Construction of infrastructure road reserves ¡ Encroachment of public land ¡ Illegal developments on public land ¡ Cultivation on road reserves ¡ Planning standards and regulation inaccessible to the majority ¡ Administrative steps, cost and time required to register on public land ¡ Complexities of land registration is a bleeding place for corruption

LAND GOVERNANCE CHALLENGES

¡ New legislation not addressed general principles to promote access to customary land ¡ CLA 2016 given responsibilities of customary land governance to an elected body based on western democratic principles ¡ Despite legislative and policy reforms access to land is still mediated by men both in patrilineal and matrilineal societies ¡ Infrastructure development on development on public land ¡ Development without planning permission result in service delivery to be difficult and costly ¡ Political interference poses as a challenge to both the institutional and legal frameworks ¡ Squatter settlements have negative impacts on infrastructure development and management

LAND GOVERNANCE CHALLENGES

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¡ Land acquisition process is bureaucratic and time wasting ¡ Result in corruption ¡ Lack of transparency and efficiency in land access result in corruption ¡ Lack of comprehensive land information system ¡ Lack of comprehensive land profile ¡ Accessibility of land registration information is missing ¡ Overlapping responsibilities result mix-ups between institutions in terms of their roles and responsibilties ¡ Policy overlaps ¡ Overlaps between different levels administration.

LAND GOVERNANCE CHALLENGES