SUMMARY OF MAIN POLICY RECOMMENDATIONS *

1.0 INTRODUCTION

2.0 HISTORICAL EVOLUTION OF LAND POLICY

3.0 OVERVIEW OF LAND PROBLEMS

4.0 LAND TENURE REFORMS, ACQUISITION AND DISPOSITION

5.0 LAND ADMINISTRATION AND RESETTLEMENT

6.0 LAND USE PLANNING AND DEVELOPMENT

7.0 SURVEYING, MAPPING AND CADARSTRAL PLANS

8.0 TITLING, REGISTRATION AND DISPUTE SETTLEMENT

9.0 ENVIRONMENTAL MANAGEMENT

10.0 INTER-SECTORIAL CO-ORDINATION

Land is the most basic of all resources available for social and economic development in Malawi. When considered in combination with water, it produces other resources including arable soils, forest, pasture, wildlife habitat and marine ecosystems valuable to people. Through the forces of nature and/or prior actions of many generations, these resources are spatially distributed in differing quantities in differing locations throughout Malawi. This distribution of land related resources is, however, not static; people have the ability to alter the mix. They can conserve or deplete existing resources or they can invest time and effort to improve the stock of certain land resources by improving accessibility.

Policy planning is a conscious effort on the part of policy-makers to achieve, via appropriate policy instruments, both national goals and specific targets for resource allocation outcome. In that sense, this national land policy, presented in the form of a coherent socio-economic policy framework, should legitimately be viewed as seeking a mechanism to promote proper stewardship of land resources for development. The policy provides a sound institutional framework for land management and introduces, among others, much needed procedures for more effective land-based investment selection, land market transactions and management of development at all levels.

This policy epitomizes a vision in the political context with immense economic and social significance. The policy requires board support to accord legitimacy to the government’s attack on poverty. Nevertheless, this has to be done in a way that will not compromise the expectation of the market or ignore the realities of resource constraints. Another vital part of the development process in Malawi is empowering individual citizens and communities to take active interest in their affairs. Land policy serves as a powerful symbol and focus for that local development effort. It provides a mechanism for reconciling widely differing attitudes towards Malawi’s development challenges. It also sets forth, as a national guideline for action, the incorporation of desirable principles of land use and management, effective civic education and broad public appreciation of the constraints and trade-offs that need to be made.

Given the complexities of managing land resources and the inter-relationship of land-use decisions with other aspects of the effort to create a socially and economically rewarding life for all Malawians, it is imperative that all stakeholders, including traditional leaders, ordinary citizens and the investor community join the Government’s commitment to implement this land policy.

To this end, I would like to thank my staff, all the citizens of Malawi, the donor community, civil society and technical advisors who contributed by their comments and constructive participation throughout the formulation process to make this policy a worthy representation of the will of the people.

Hon. Thengo Maloya, M.P.

Minister of Lands and Housing

17^th January 2002.

AWP Annual Work Plan

CBD Central Business District

CLSB Central Land Settlement Board

CLUS Customary Land Utilization Studies

CRM Chief Resident Magistrate

DANIDA Danish International Development Agency

DFID Department of International Development

DLO District Land Office

DTTA District Tribunal of Traditional Authorities

ELUS Estate Land Utilization Studies

EU European Union

FAO Food and Agricultural Organization

GDP Gross Domestic Product

GN Government Notice

GOM Government of Malawi

GPS Global Positioning System

LIS Land Information System

MAGICC Malawi Geo-data Information Coordinating Committee

LIMS Land Information Management System

MHC Malawi Housing Corporation

MLH Ministry of Lands and Housing

NLIMS National Land Information Management System

NPDP National Physical Development Plan

NGO Non-Governmental Organization

PLUS Public Land Utilization Studies

TA Traditional Authority

TALT Traditional Authority Land Tribunal

TC Traditional Courts

TLT Traditional Land Tribunal

TLB Traditional Land Board

TLC Traditional Land Clerk

USAID United States Agency for International Development

CLC Customary Land Committee

VLT Village Land Tribunal

WB World Bank

WGS World Geospatial System

Allodial Interest: The highest proprietary interest known to customary schemes of interest in land. It is sometimes referred to as the paramount title, absolute title or radical title.

Cadastral Map: A map that shows how a locality is divided into units of ownership.

Cadastre: A public register of the quantity, value, and ownership of the land of a country compiled for the purpose of public policy.

Customary Law: Unwritten law established by long usage. Malawi and most African countries define customary law as rules of law, which by custom are applicable to particular communities.

Dambo :  Permanent wetlands

Encroachment: Any development on land for which the developer has no legal interest or planning and building permit for the development.

Ndunda System: A tenure system designed for the Lilongwe West Development Project to give security of ownership over customary land through the registration of title.

Open Market Value: This is the best price at which the sale of an interest in property might reasonable be expected to have been completed unconditionally for cash consideration on the day of valuation assuming:

a) Willing seller and a willing buyer;

b) That, prior to the date of valuation, there had been a reasonable period (having regard to the nature of the property and the state of the market) for the proper marketing of the interest, for the agreement of price and terms and for the completion of the sale;

c) That the state of the market level of values and other circumstances were, as on any earlier assumed date of exchange of contracts, the same as on the date of valuation; and

d) That a purchaser with special interest takes no account of any additional bid.

Social Function of Land Criteria: The social function of land is defined as the most socially desirable use of land considering its location and scarcity value, physical and environmental attributes and the appropriate land management plan for its effective utilization.

Title: The evidence of a person’s right to property.

Traditional Authority: The area of indigenous geo-political and socio-economic jurisdiction; an indigenous state (customary sovereignty) sometimes of a single lineage descent group that represents the source of authority of the Chief as the primus inter pares. The Traditional Authority is also a symbol of kinship unity and its responsibilities devolve upon its living representatives, the Chief and his councilors.

Traditional Land Management Area: The geographic area of land held by a community and administered by a Traditional Authority on behalf of the communal group.

Unexhausted Improvements: Unexhausted improvement refers to improvements of any quality permanently attached to land directly resulting from the expenditure of capital or labor by a person holding a right in land being valued.

Usufruct: Rights in land held by a member of the land holding community or a stranger who has obtained an express grant from the land holding community using customary mode of alienation. It is at times referred to as customary freehold, proprietary occupancy or determinable title.

The Malawi National Land Policy epitomizes the government’s desire to address the constraints to Malawi’s social and economic development caused by the absence of a comprehensive land policy. The following are some of the key recommendations.

1. Government Land will henceforth refer exclusively to land acquired and privately owned by the government to be used for dedicated purposes such as government buildings, schools, hospitals, public infrastructure or made available for private use by individuals and organizations.

2. The Public Land categorization will be reserved strictly for land managed by agencies of the government and in some cases by Traditional Authorities in trust for the people and openly used or accessible to the public at large. This will include land gazetted for National parks, Conservation, Historical, and Military sites, etc.

3. In the case of customary land managed by Traditional Authorities, common access land reserved as dambos, community woodlots, etc, will be classified as public land exclusive to members of the Traditional Authority.

4. Except in the exercise of the state’s police powers, all acquisitions by the government will require negotiation and the payment of compensation at fair market prices for the land as well as improvements on the land.

1. The Government will allow all customary land to be registered and protected by law against arbitrary conversion to public land. The traditional supervisory role of chiefs, clan leaders, headpersons and family heads in land matters will be formalized and streamlined to allow uniform administrative procedures and transparency in all customary land transactions.

2. All customary landholders, defined to include entire communities, families or individuals will be encouraged to register their holdings as private customary estates with land tenure rights that preserve the advantages of customary ownership but also ensures security of tenure.

3. Private leasehold estates shall be created as subsidiary interests out of any private land, including registered customary estates without relinquishing the ownership of the customary landholder. This provision will allow traditional leaders, family heads and individual holders of registered customary land to grant leases.

1. The amount of freehold land in Malawi owned by non-citizens will be frozen and limited to freehold land already registered to non-citizens as of 17^th January, 2002. Non-citizens will no longer be allowed to acquire title to any new freehold estate.

2. Non-citizens and foreign companies will be permitted to lease land from the Government or directly from private landowners for investment purposes in accordance with their residential and investment objectives.

3. From the coming into force of this policy, freehold ownership will be a privilege reserved for citizens of Malawi. Foreign investors interested in freehold land for investment purposes will be encouraged to form partnerships and/or joint ventures with Malawians.

4. In accordance with current Malawi immigration laws, non-citizens currently in possession of freehold estates in Malawi will be encouraged to obtain Malawian citizenship in order to retain their free ownership. The citizenship right of eligible non-citizens will be protected by law and will not be politicized or left to individual discretion.

5. Subject to existing transfer laws, non-citizens already in possession of registered freehold assets of publicly traded corporations shall be permitted to transfer such assets to other non-citizens only when deemed necessary to preserve the investment value of these companies.

6. With the exception of a few very special types of investments, such as mining, forestry and some perennial tree crops such as tea (a comprehensive list of eligible investments shall be prepared), most leasehold terms for industrial and commercial investment purposes throughout the world generally are for less than 50 years, with renewal clauses allowed. For that purpose, the standard leasehold term for land leased for investment purposes in Malawi will also be for a renewable term of 50 years or less.

7. The standard leasehold term for owner occupied residential development will remain 99 years with renewable clauses allowed.

1. Land use planning will be extended to all rural and urban land, including freehold, leasehold and customary estates. However, the declaration of a planning area will not automatically require the conversion of all customary land to public land, as has been the practice prior to this Land Policy. Instead, all landowners in such planning areas will be required to comply with approved planning and development regulations.

2. Urban physical planning and development controls will be enforced to discourage speculation, and guidelines for rural land use planning, conservation and environmental management will be developed by Local Planning Authorities and Community Development agencies to guide rural and urban land use and development decisions.

3. To avoid lengthy and costly delays in the granting of land titles and the issuing of leases, land administration responsibilities will be decentralized and District Land Registries established in each district to record all land transfers, conveyance and title registration, and to offer surveying and land management services.

1. In the interest of Malawi’s economic and social development, the Land Policy provides guidelines designed to encourage certain cultural attitudes and traditional land institutions to change in line with contemporary cultural norms.

2. The Government strongly supports gender sensitive access to land and calls for changes in inheritance laws to allow the remaining spouse, children and especially orphans to inherit the property of their parents even when the deceased parent or parents die without a will.

3. The land administration role and responsibilities of Chiefs, Clan Leaders, Headpersons and Family heads will be formalized and made more democratic and transparent.

4. The Government will install special protections for the land rights of minors and place a legal duty on Chiefs, Headpersons and adult members of the family to protect the land rights of a surviving spouse and children in both matrilineal and patrilineal inheritance areas throughout Malawi.

5. In areas with higher than normal land pressure, the Government will encourage community-based land acquisition and development strategies to ease land pressure and secure the resources necessary to support the resettlement of land starved households.

1. The land policy calls for training, modernization and capacity building in all the surveying and land management professions (Planners, Surveyors and Valuers) to ensure adequate professional advice and support services are available for land use and environmental management decisions at all levels of government and by the private sector.

2. The Government supports community participation in the management and the right to a share of the revenue derived from public land established on land managed by a Traditional Authority. This includes land reserved for national parks, forest reserves and protected areas.

3. Other land sector policy reforms enacted since 1994 to encourage agriculture, forestry, tourism, mining and natural resource management and habitat preservation are also recognized and affirmed by this policy.

This land policy has been prepared carefully and in a balanced way to remove most of the pressing problems that has created tenure insecurity and undermined speedy and transparent land transactions in Malawi. In many cases, the inadequacies of existing laws, delays in land administration, arbitrary applications of the public interest criteria, constraining inheritance laws and uncertainty regarding the strategies for dealing with land pressure have all operated to discourage needed investments and the nations ability to eliminate poverty and pursue social harmony.

Fundamental measures and processes contained in this National Land Policy will equip Malawi to minimize, if not eliminate the most constraining land problems and bring progress and prosperity to all.

1.1.1 In Malawi, as elsewhere in the world, land policy reflect the imperative of changing economic, political, social circumstances. The country has endured a history of continuously reconstituted clusters of traditions, colonialism, rules, expectations and conflicts, which gave rise to changing land regulations and practice. The principles and guidelines set out in this National Land Policy together with legislation to be enacted in support, will give substance to Malawi’s quest for a comprehensive land law with immense economic and social significance. The policy also provides a sound institutional framework for democratizing the management of land and introduces much needed procedures for protecting land tenure rights, land-based investments and management of development at all levels.

1.1.2. Policy planning is a conscious effort on the part of policy-makers to achieve, via appropriate policy instruments, both national goals and specific targets for resource allocation. In that sense, this national land policy, presented in the form of a coherent socio-economic policy framework, should legitimately be viewed as seeking a mechanism to promote optimum utilization of Malawi’s land resources for development.

1.1.3. Malawi has operated without a comprehensive policy on land matters for a long time. The present system is a product of colonial history and settlement patterns, policies of the one party era and recent demographic trends. All these events to some extent contributed to the problems that affect land tenure and land utilization today. The right to own land must be respected, but land problems extend beyond individual tenure rights. They involve issues on rural and urban land management, community development, and the advancement of agriculture and protection of the environment.

1.1.4. In order to address these land-related social welfare problems, land reform should be dealt with fundamentally and comprehensively. Nevertheless, this has to be done in a way that will not compromise the expectation of the market or ignore the realities of resource constraints. Another vital part of the development process in Malawi is empowering individual citizens and communities to take active interest in their affairs. Land policy serves as a powerful symbol and focus for that local development effort. It provides a mechanism for reconciling widely differing attitudes towards Malawi’s development challenges.

1.1.5. Given the complexities of managing land resources and the linkages between land-use and the effort to create a socially and economically rewarding life, it is imperative that this national policy be promoted. The Land Policy has the definite objective of ensuring equal opportunities for the acquisition, use and enjoyment of land for all citizens. This objective can best be achieved by the actions required by this Land Policy to incorporate desirable principles of land use management, effective civic education and broad public appreciation of the constraints and trade-offs that need to be made.

1.1.6. The Government is convinced that the steps that have to be taken to achieve these land reform objectives give broad support to poverty alleviation. It also offers the best opportunity to bring about a land dispensation that is economically sound and compatible with the basic values and ideals of the nation.

1.2.1 In developing this Land Policy, the Ministry of Lands and Housing (MLH) pursued a consultative approach that involved a number of measures in order to achieve the following objectives:

q Collect and analyze scientific and empirical information necessary for making accurate and informed decisions about land utilization;

q Place ownership of the Land Policy in the public domain through the work of the Presidential Commission of Inquiry on Land Policy Reform and reliance on national consultants;

q Build consensus among key stakeholders and thus establish public confidence in the formulation process to enhance chances of implementation;

q Establish synergies and areas of complimentarity with other land sector agency policies to ensure consideration of crosscutting issues.

1.2.2 These objectives were achieved through the following consultative activities:

a. Policy Planning Unit and Task Force: With the support of the World Bank, the Ministry of Lands and Valuation in 1995 established the Policy Planning Unit (PPU) to review existing policies and laws and to steer a comprehensive approach to land policy reform. A 22 member multi-disciplinary and inter-ministerial task force that included representation from government, stakeholders from private industry, non-governmental organizations and civil society groups supported the PPU. Experienced National Consultants and one International Consultant supported the PPU in its work. This ensured local ownership of the process.

b. Land Utilization Studies and Special Reports: Because of the very sensitive nature of land matters, the ministry sought the assistance of a consortium of donors, including the World Bank, DANIDA, DIFD, EU, FAO, and USAID provided support for a series of background studies designed to provide the empirical and analytical basis for any proposed policy reforms. Some of the special studies conducted to understand land utilization from 1996 focused on the following areas:

q Land Use Study, using air photo interpretation was used to assess the extent of cultivation within customary areas.

q A Tracer Study based on National Sample Survey of Agriculture was used to collect additional information in order to estimate the intensity and efficiency of customary land uses.

q A Socio-economic Study of Land Tenure was conducted to understand the procedures and processes of customary land allocation and alienation.

q Estate, Public and Customary Land Utilization and Interaction Studies to assess land use effectiveness and socio-economic linkages between land-use categories was performed.

q Special Land Tenure Case studies to evaluate the stability of land tenure arrangements of special programs and smallholder associations was produced in order to understand their crosscutting implications for poverty alleviation and land resources management.

q Additional studies were conducted from 1996 through 1998 on commercial estate and public land tenure as part of a comprehensive review of land use and resource management in Malawi.

1.2.3 The review of literature also included secondary sources of information from international development agencies, the scholarly and scientific community and other sectoral policies with strong synergies with land.

a. The Presidential Commission: To ensure the views of the citizens were not overlooked, the government took the initiative to establish the Presidential Commission On Land Policy Reform with the assistance of UNDP in 1996. The mandate of the Commission was to promote scholarly discourse, gather the opinions of the private sector, ordinary citizens and non-governmental organizations, and to organize their findings in such a manner as to aid the land policy reform efforts of this Ministry.

b. The Secretariat: the Ministry had opportunity to synthesize all the background research, public findings and the results and input from special studies. Work on the preparation of the draft policy document (which started in January 2000) also benefited immensely from the report of the Presidential Commission. In the final phase of the process initiated in 1995, the Ministry engaged in an extensive consultative process as outlined below. An Inter-ministerial Steering Committee composed of senior officers selected from various government ministries assisted the Ministry in its work.

1.2.4 Stakeholder Consultations: A series of stakeholder consultative meetings, discussions and symposia were conducted throughout the drafting process across the nation and at all levels as follows:

a. Small Focus-group Gatherings: Most of the preliminary policy proposals were discussed in small gatherings with stakeholders, traditional leaders and civil society groups in selected areas of the country where the land problems being considered were most prevalent. The primary objective was to use the collective wisdom of the people to test acceptability of the policy proposals as they were being formulated.

b. Regional consultative workshops: Three Regional Workshops, one for each administrative area, were held from July – August 2000. More than 600 participants, including some members of parliament, political leaders, traditional leaders, members of the judiciary, civil society and ordinary citizens attended these regional consultations. The regional workshops were used as a platform for a critical examination of the policy recommendations under consideration for a variety of issues and land problems. They also served as avenues for soliciting public opinion on potential policy intervention strategies for addressing identified challenges in the land sector.

c. Expert Opinions and Revisions: A number of Malawian scholars and land policy experts identified by international development organizations also subjected the policy recommendations expressed in the draft document to further scrutiny. Their opinions and recommendations were incorporated to improve and ensure its consistency with both regional and international expectations.

d. National Consultative Workshop (NCW): A National Consultative Workshop was convened in October 2000 at the new State House in Lilongwe. It brought together an even larger cross section of participants representing all stakeholders and some international observers. All participants received a full copy of the draft Land Policy and a package of workshop documents designed to facilitate discussion and suggestions for revising the document. The views expressed and recommendations suggested provided a final test of the validity of the draft policy objectives, strategies and planned interventions.

e. Further Public and Stakeholder Consultations: During the National Workshop and immediately after, the Minister of Lands and Housing made public appeals to all stakeholders and ordinary citizens to examine the policy recommendations, to submit constructive criticisms and to recommend modifications for consideration. The Ministry allowed a waiting period of more than seven months following the National Workshop during which a number of stakeholders submitted written proposals or expressed their opinions in the radio, newspapers and on national television. Comments were received from NGOs and Civil Society organizations, the Tea Association, The Small Holder Tobacco Association, the Malawi Association of Bankers, and delegations of Chiefs and ordinary citizens. The Ministry arranged private audiences with some and gave serious consideration to all the comments received.

f. Political Clearance process: The political clearance process required careful review by the Cabinet Committee on the Economy and a series of presentations and discussions with Heads of land sector Ministries and policy makers in Government by the Minister responsible for lands and key advisors from the Ministry. Cabinet approval of the policy was finally granted on 17^th January 2002.

1.2.5 Extensive consultation, while it may have protracted the process, allowed the thought processes of the Ministry to expand beyond the confined furrows previously thought possible and to break new ground. The end product is a framework for land management in Malawi that sought and obtained the guidance of ordinary citizens and technical advisors in a variety of fields for the purpose of making the policy truly representative of the will of the people.

1.3.1 Land is the most basic of all resources available for social and economic development in Malawi. The existing land tenure system and pattern of land use is the result of antecedent customs, human settlement and demographic processes, modified by legal and economic influences of the colonial era and previous policies on land utilization. In preparing the Land Policy, the following guiding principles were used.

1.3.2 Land Policy: Land Policy consists of a whole complex of socio-economic and legal prescriptions that include the system of land tenure, and influence how land resources and the benefits from the land are to be distributed. Therefore, national land management should entail decision-making and the implementation of decisions about land.

1.3.3 Secure Land Tenure: Malawi’s macroeconomic performance in 2000 shows the economy has remained quite unsatisfactory in the past five years. There was a 46% decline in the performance of the small-scale agricultural sector and an overall decline in real GDP growth from 3.6% in 1999 to 2.1% in 2000. Failure to reform and secure the tenure rights of smallholders has long been established as the primary cause of under investment, reliance on primitive technology and a fundamental reason for low wages in most rural areas. Because of the continuing deterioration of real incomes at the household level coupled with the heavy dependence of rural communities on the land, it is the Government’s imperative to place land policy at the center of the nation’s poverty reduction strategy.

1.3.4. Sustainable Land Management: The correlation between ineffective land policy and poverty also negatively impair land resource management practices throughout the country. Because previous land policies neglected to reform the smallholder sector in particular the prevailing attitudes encouraged degradation and a rejection of traditional land resource management ethos in many rural communities. This national land policy presents a coherent socio-economic framework for promoting environmentally sustainable management of Malawi’s land resources for development.

1.3.5 Productive and Efficient Land Use: The thrust to streamline land policy is to encourage citizens with the ability and resources to make productive and sustainable investments in land to have access and security of tenure. However, the desire to improve access also heightens the risk that, if legal security and other assurances of tenure are not provided, especially to customary landholders, land market uncertainty and population pressure may deprive some holders of the right to land. Therefore, the challenge for Malawi is to find the policy framework that will respond to market signals and people’s aspirations about how to use land within the regulatory environment set by the basic laws of the country.

1.3.6 Land Administration: The administration of land is primarily concerned with controlling land use. Land use is a combination of human activities that occur on land and are specifically tied to parcels of land. Conserving virgin forest, subdividing land to accommodate housing development and zoning an area for commercial and industrial purposes are all forms of land use. Therefore the physical planning perspective provides a framework to reconcile social and economic objectives through the preparation of land use plans that optimize the distribution of private benefits without compromising the welfare of the nation as a whole.

1.3.7 Vulnerable Groups From the institutional perspective, land policy is primarily concerned with social actions that influence and control people’s use of the land. More often than not, the rights of women, children and the disabled are denied on the basis of customs and traditions that are no longer relevant, or they are totally disregarded due to prejudice and lack of effective representation. This being so and in view of the effects of increasing land pressure due to population as well as the devastating effects of HIV/AIDS pandemic, a clear policy on gender access and the rights of children and the disabled should always be considered in policy planning and implementation strategies.

1.3.8 Institutional Framework for Land Management: This national land policy includes not only the analysis of the constitutional context in which land is held and used in Malawi. It includes the legal framework by which issues relating to access and the content of land rights, control of land use by the state and traditional organs are determined. This policy provides a sound institutional framework for land management and introduces, among others, much needed procedures for more effective land based investment selection, land market transactions and management of development at all levels.

1.3.9 Land Information System: Land information is needed when changes in land use are required. The basic unit upon which land records can be compiled is the land parcel. Several categories of land information systems developed around land parcels exist to provide precise spatial, environmental and cadastral information, or specific legal rights and duties vested in land to support land policy administration. Thus, a careful approach to the registration of ownership of interests in parcels of land will be combined with the development of a Malawi Geo-data Information Coordination Committee (MAGICC) as an instrument for planning and land policy administration.

1.3.10 Optimum Utilization of Land: The government considers it important that while encouraging a market-oriented economy, land should be used in the most productive manner. The government intends to encourage an open market in land that will cause land values to move towards their highest and most desirable uses. The land market simply allows people to select space for themselves, and to signal the need for change in the availability of specific types of land. Often, the presence of profitable investment opportunities in land will encourage optimal utilization of land to occur.

1.3.11 Legal Framework for Land Policy: To pursue the objectives of this National Land Policy, a new comprehensive land law will be passed to give legal effect to the policy guidelines presented in this document. The same law will institutionalize, once and for all, a modified and accountable land administration system that makes local and district governments the principal agents for land administration. Besides, the new land law will give the administrative structure required and the legal authority to implement the new policy recommendations.

1.4.1 Land Policy Goal: The goal of the National Land Policy in Malawi is to ensure tenure security and equitable access to land, to facilitate the attainment of social harmony and broad based social and economic development through optimum and ecologically balanced use of land and land based resources.

1.4.2 Land Policy Objectives: A number of specific land policy objectives have to be satisfied in order to achieve this overall goal. Particular among them are the need to:

A. Promote tenure reforms that guarantee security and instill confidence and fairness in all land transactions:

q Guarantee secure tenure and equitable access to land without any gender bias and/or discrimination to all citizens of Malawi as stipulated under Article 28 of the Constitution.

q Instill order and discipline into land allocation and land market transactions to curb land encroachment, unapproved development, land speculation and racketeering.

B. Promote decentralized and transparent land administration:

q Ensure accountability and transparency in the administration of land matters, and guarantee that existing rights in land, especially customary rights of the smallholders, are recognized, clarified, and ultimately protected in law.

q Set guidelines for establishing economically viable ceilings on land ownership that will be translated into a statutory mandate to prevent extreme land concentration in a few hands, or individuals and/or organizations and extreme fragmentation.

C. Extend land use planning strategies to all urban and rural areas:

q Extend land use planning and strategies for disseminating land information to ensure effective utilization of land in urban and rural areas.

q Facilitate efficient use of land under market conditions to ensure optimum benefits from land development.

D. Establish a modern land registration system for delivering land services to all:

q Provide formal and orderly arrangements for granting titles and delivering land services in modern and decentralized registration system that support local governments throughout Malawi.

E. Enhance conservation and community management of local Resources:

q Promote community participation and public awareness at all levels to ensure environmentally sustainable land use practices, and good land stewardship;

F. Promote research and capacity building in land surveying and land management:

q Promote research and continuous education of the public on all aspects of the duties and obligations of land tenure, land stewardship, and operations of the land market.

1.5.1 To achieve the objectives of the National Land Policy, the sections of this document have been organized into ten logical parts.

Sections 2 and 3 provide an abridged historical overview and summary of land problems that led to the need to formulate this Policy. These sections identify key historical issues as well as recent challenges created by the absence of a comprehensive land policy. They also present the long-range goal and objectives that guided the preparation of the document.

Section 4 provides clear definitions and categories of land tenure and outlines the policy proposals to reform the land tenure system. The Section also devotes attention to new policy recommendations according statutory recognition to customary tenure and protections against fraudulent acquisitions and dispositions of customary estates.

In Section 5, the focus is on land administration issues. It includes recommendations for making more transparent and democratic the responsibilities of traditional leaders at all levels of the land administration hierarchy from Chiefs and Sub-Chiefs down to Clan leaders, Headpersons and Family Heads.

Section 6 discusses land use planning and development control requirements. In addition to extending the need for planning to all urban and rural areas, the section also discusses strategies for encouraging compliance with development controls, including areas covered under the Lakeshore Development and Land Use Management Control Order.

Sections 7 and 8 discuss the challenges caused by the lack of professional capacity in the surveying and land management professions and call for the adoption of alternative surveying methods to facilitate the preparation of cadastral plans. The Government recognizes the need to decentralize land administration by establishing District Land Registries to assist local assemblies and district development agencies manage local development.

Sections 9 and 10 deal with issues that pertain to community management of land resources, conservation and environmental management, habitat preservation and land degradation. Section 10 in particular focuses on inter-ministerial, interdisciplinary and cross cutting issues including gender access, agriculture, capacity requirements and the administrative and fiscal capacity of Local Assemblies for monitoring the implementation of land policy.

2.1.1 Malawi is a landlocked country with an agricultural economy that accounts for over 40% of Gross Domestic Product (GDP). The country is wedged between Zambia to the west, Tanzania to the north and northeast and Mozambique to the southeast, south and southwest. Lake Malawi defines 548 kilometers of Malawi’s eastern border and serves as an important economic resource and navigation channel. The physiology of the country is characterized by undulating terrain with five large plateaus; namely Mulanje, Zomba, Dedza, Viphya and Nyika, dominating the landscape.

2.1.2 The country's population in 1998 was approximately 9.8 million people and has been growing at an average rate of 1.9% per annum. Of this population 12% were enumerated in the Northern Region, 41% in the Central Region and 47% in the Southern Region. The land area occupies 118,324 square kilometers of land and water, of which 53,070 is considered suitable for cultivation. With more than 105 inhabitants per square kilometer of arable land, Malawi has one of the highest population densities in Africa and this has contributed to land degradation and accelerated deterioration of natural resources.

2.1.3. The assessment of overall land availability, given in Table 1 below, indicates that Malawi has a total of 11.8 million hectares of which 9.8 million is land. Agricultural estates occupy 1.2 million hectares and the area potentially available for agriculture by small farmers is approximately 4.5 million hectares after adjusting for wetlands, steep slopes and traditional protected areas.

Table 1: Overall Land Availability in Malawi

2.1.4. According to the National Statistic Office (NSO), 55% of smallholder farmers have less than 1 hectare of cultivable land, which does not meet their basic food needs. As a result, more than half of the population lives below the poverty line of US$140 per capita income annually. In absolute terms, the poverty of the country is predominantly rural and is reflected in the below average social indicators. The illiteracy rate is about 56% for the overall population. Malnutrition is widespread, and the child mortality rate at 238 per 1000 is among the highest in the world.

2.1.5. Overall macroeconomic growth declined from 10.3% in 1998 to an average annual rate of 4.1% in 2000 and 2001 with the decline in the tobacco market. The smallholder sector, which contributed over 43% of GDP, also accounts for 87% of the labor force, although its productivity has fluctuated since 1981. For example, production declined by 3.1% in 1997, but was followed first by strong average growth of about 12% in 1998 and 1999 and a sharp decline to 3.5% in 2000 and 2001. Over the same period, the contribution of the estate sector saw a steady increase as more and more land was converted to tobacco, tea, and sugar production. Furthermore, Malawi’s economy has been plagued with a variety of problems. Periods of severe drought have combined with high population growth and rising inflation to increase Malawi’s dependence on international aid. To make matters worse, efforts to adjust the structure of the economy by bringing administrative and fiscal discipline have also contributed to cuts in social services and a decline in government expenditure in real terms.

2.1.6. This overall decline of real incomes has had the consequence of increasing poverty for the majority of citizens. The smallholder sub-sector has also exacerbated the problems of under investment by their reliance on primitive technology. These have resulted in serious environmental degradation, especially deforestation, soil and habitat losses. In this setting, understanding the evolution of land policy and the legal regime governing the country's land resources is an important first step in the development of future land management strategies.

2.2 The Evolution of Land Law

2.2.1. The essence of colonial land policy in Malawi was to appropriate all land to the British sovereign and to facilitate access by the settler community on the basis of private title. The policy also redefined native rights strictly as "occupation rights" in order to discourage the establishment of land rights equivalent to freehold or the concessions claimed by the settlers.

2.2.2. The presence of European settlers led to the passage of the Nyasaland Order in Council, 1902 and allowed the general application of English law supplemented by specific enactments based on English property law. This clause remained the sole source of the substantive law of property in Malawi until 1964 when the Supreme Court of Appeal Act (Cap. 3:01) came into effect and incorporated it.

2.2.3. The Land Ordinance of 1951 defined land as public, private or customary. However, "customary" land, was in essence defined as a mere species of "public land" (or crown) land. This was an arrogant concession to Malawi citizens who, by virtue of the Ordinance, become tenants on their own land. This position was re-enacted in the Land Act (Cap 57:01), which came into force in 1965. The passage of the Land Act in 1965 did not change the status and insecurity of customary land rights caused by the application of the Land Ordinance of 1951.

2.2.4. The first serious attempt to provide a comprehensive body of land law was made in 1967 with the passage of the Registered Land Act (Cap 58:01) and the Customary Land Development Act (Cap 59:01). However, the limited application of both Acts to Lilongwe West made the effort to secure customary rights by the enactment of the Registered Land Act an incomplete experiment entirely dependent on the efficiency of land administration personnel. Because of these previous policy failures, there is need to enact a basic land law that would apply to all land, irrespective of tenure.

2.3.1. A careful review of land legislation in Malawi from colonial to post-colonial times concludes, as indeed many others have done, that:

First, the imposition of English Law in general and English property concepts in particular has constrained the evolution and growth of customary land law. As a result, there is need to design and enact a basic land law that would provide a broad framework for the determination of property rights, for the conduct of proprietary transactions, for the control and management of land, and for the settlement of disputes over land.

Second, care should also be taken in that framework to provide mechanisms and guidance for the orderly evolution of customary land law and to encourage a more transparent management of land held under customary tenure.

Third, not enough antecedent property law was received to provide Malawi with a robust juridical basis for unambiguous interpretation of land rights. As a result, the ability to determine claims arising from the corpus of land laws in Malawi remains rudimentary and undeveloped.

Finally, the Registered Land Act remains a statute of very limited application and needs to be revised and extended to apply to all land, irrespective of tenure.

2.4.1. The government of Malawi has operated without a comprehensive land policy since independence. The 1965 Land Act currently in use no longer reflects the practical realities of Malawi’s land management problems and opportunities. Consequently, the land policy environment in Malawi has been characterized by weak planning coordination, absence of proactive policy interventions and limited capacity for dynamic monitoring at all levels of land administration.

2.4.2. Some of the main effects of operating without a comprehensive policy on land can be summarized as follows:

a. Failure to deal with the land policy concerns from the 1960’s and 1970's have indirectly contributed to today's problems of poverty, food insecurity, and perceived inequities in access to arable land.

b. In most areas the void created by the absence of clear policy direction heightened tenure insecurity, environmental degradation and the cultivation of marginal land areas. Soil loss due to erosion and deforestation is currently estimated to average 20 tons per hectare per annum.

c. Besides the loss of soil fertility and agricultural productivity, the frequency of land tenure encroachments has increased in recent years. This trend has also been attributed to increasing poverty and poor enforcement capabilities of government agencies.

d. Increasing environmental degradation, loss of biodiversity, diminishing surface and ground water aquifers is a manifestation of land pressure. Since 1972, total forest cover has declined by more than 41% mainly due to the demand for wood fuel and clearing to expand cultivation.

e. The legal structure inherited from the colonial era has been used to weaken the customary sector and to make the estate sector bias feasible rather than reformed. This heavy bias in favor of the estate production mode appears to contribute to the shortages of arable land in some regions.

f. Fraudulent disposal of customary land by headpersons, chiefs and government officials often deny critically needed access to people most desperate for land.

2.4.3. Food security, increased rural incomes and effective utilization of land can only be assured in Malawi by a careful examination of (i) the existing tenure tenets and enabling customs, (ii) the current land policy and enabling land legislation, and (iii) by implementing the requirements for encouraging land policy reforms that will stimulate economic growth.

2.4.4. These observations from previous land utilization studies and the recommendations of the Presidential Commission has reinforced the Government’s desire to accelerate the pace for drafting a new national land policy for Malawi.

3.1.1. The problems associated with land in Malawi are many and varied and are, in many ways, a symptom of a much deeper social discontent and economic hardship. Specific problems arising from the simultaneous operation of customary land tenure and private ownership regimes create institutional obstacles with crosscutting effects. In the absence of a comprehensive land policy the avenues of expression are limited and ad-hoc policy responses by the government have tended to be short-term and ineffective. Although not intended to be exhaustive, a summary of some of the main land problems prevalent in Malawi is as follows:

3.1.2. Residual Effects of Colonial Land Policy: In common with other Southern African countries Malawi inherited a rural settlement structure in which white farmers held some of the most fertile and well-watered lands. The effect of the concentration of freeholds in districts settled by the white farmers in the Southern Region and subsequent expansion of estate agriculture after independence is a relatively skewed distribution of freeholds in the country. As a result there is an urgent need for strategies to relieve land pressure in the severely affected parts of the country.

3.1.3. High Population to Land Ratio: According to the National Statistical Office (NSO) the country's population, estimated at 9.8 million in 1998, has been growing at about 1.9% per annum with an average population density of approximately 105 persons per square kilometers. However, this population is not evenly distributed throughout the country. The Southern Region (146 persons/sq. km) has some of the highest population densities in the country and is urgently in need of population relief and land redistribution solutions.

3.1.4. Land Scarcity in spite of Idle Lands: On the basis of estimates made in 1994, 2.6 million hectares of suitable agricultural land remains uncultivated in the rural areas. This means that approximately 28% of the country's total land area is lying idle. Similarly, speculative holding of urban plots and lack of infrastructure causes artificial shortages of urban development land.

3.1.5. Provocative Squatting: Squatting in gazetted forests, national parks, on private land and other protected areas in land pressure districts has become frequent and sometimes violent.

3.1.6. Worsening Land Pressure: Land pressure has substantially increased land tenure insecurity and uncertainty despite attempts by communities to consolidate access rights both physically and legally. The difficulties created by land pressure and tenure insecurity manifest themselves through increased land degradation particularly in customary land areas.

3.1.7. Privatizing Access to Customary Land: There is increasing evidence that, as the economy becomes more commercialized and less dependent on subsistence agriculture, access rights defined by customary rules are also becoming more private and restrictive than before. In the absence of clear and transparent policy, it is difficult for most citizens to understand the evolving rules of access and security of existing customary land rights.

3.1.8. Mismanagement Of Land Development: The evidence of under utilization of land, obstruction of watercourses, illegal development, and unplanned or unregulated buildings in urban settlements indicate a failure of development controls. These are occurring in the context of all land tenure categories and land uses.

3.1. 9. Cross Border Encroachment by Immigrants: Evidence of encroachment by nationals from Tanzania, Mozambique and Zambia into Malawi can be attributed to the fact that many border communities share linguistic and blood ties with one another and hence claim reciprocal rights of access to land and their kinsmen. Thus the existence of "international" boundaries and territoriality is often ignored.

3.1.10. Encroachment onto Conservation and Protected Areas: The fact that the creation of some National Parks and Protected areas involved the displacement of entire villages, some of which were forced to move into valleys and uncultivable areas remains a source of grievance making some parks and protected areas vulnerable to encroachment.

3.1.11. Uncontrolled Allocation of Lakeshore Land: Particularly prone to illegal development is the lakeshore, which has from time immemorial been under the jurisdiction of Traditional Authorities. In the recent rush by individuals and corporations to erect private leisure cottages and hotels, planning and development problems have gone unchecked.

4.1.1. The Government affirms that, the welfare and development objectives of the nation can best be achieved within a system of private ownership of interest and participatory governance. Consequently, the radical title to all land in Malawi, irrespective of land tenure regime, will continue to vest in the state, traditional authorities and in some cases individuals and families. However, every person has a natural dependence on land and it is the responsibility of the government to assure the private rights of citizens by making provisions for secure and equitable access to land as a multi-purpose resource and an economic asset. Article 28 of the Constitution of Malawi aims to assure every citizen of their inalienable right to acquire property alone or in association with others (including foreigners), and to protect the property of citizens from arbitrary seizure.

4.2.1. With the coming in force of this land policy, the categories of land recognized in Malawi will be defined as follows:

4.2.2. Government land will comprise land acquired and privately owned by the government and dedicated to a specified national use or made available for private uses at the discretion of the government.

4.2.3. Government land is in the context of this Land Policy, used as a more specific description of land acquired by the Government or agencies of the Government to serve a specific national purpose. For clarity, Government Land will include land reserved for government buildings, schools, hospitals, etc., or government owned land leased for exclusive use by individuals, companies and institutions for which ground rent is often paid.

4.2.4. Public land will be land held in trust and managed by the Government or Traditional Authorities and openly used or accessible to the public at large. This category of land includes land gazetted for use as national parks, recreation areas, forest reserves, conservation areas, historic and cultural sites, etc.

(a) The public land designation applies also to all land vested in the Government as a result of uncertain ownership, abandonment and land that is unusable for one reason or another.

(b) Within a Traditional Authority, the community’s public land will include all land within the boundaries of the TA not allocated exclusively to any group, individual or family. This designation applies in particular to dambos, dry seasons communal grazing areas, etc. Such common access or unallocated customary land reserved for the community are regarded as public only to members of that community and will be protected.

4.2.5. In the past, the absence of any distinction between Government Land and Public Land caused a lot of mistrust and confusion among citizens and land administrators. Because the public land designation was used to effectively expropriate customary land without compensation, it remained at the root of most of Malawi’s land problems. This new distinction makes the Government’s acquisition plans more transparent. The distinction is also necessary for separating land held in trust by the Government from land acquired by the Government for which ownership is actually transferred to the Government.

4.3.1 Holding land in trust for citizens does not make a Headperson, Chief, or any public official the owner of the land.

4.4.1 Under Section 24 of the Registered Land Act, registration of a person as the proprietor of any land makes that person or groups of persons the registered owners of private land. Thus, Private land is all land that is exclusively owned, held or occupied under (a) freehold tenure, and (b) customary land allocated exclusively to a clearly defined community, corporation, institution, clan, family or individual. Such exclusive allocations of customary land will henceforth be known formally as a "customary estate."

4.4.2. A leasehold estate can be created out of Government land or any private land including customary estates so long as the term of the lease is less than that of the owner. However, in protecting private property as a constitutional right, it is important to note that:

(a) A leasehold interest under common law is a private contractual right subject to the enforcement of development conditions imposed by the owner. It is, in practice, equivalent to a tenancy arrangement and will be recognized as a legitimate source of land title.

(b) Because a lease grants exclusive use rights, a leasehold estate is also regarded as private land held by the leaseholder.

4.4.3 Escheat: All private land will be subject to common residual rights of the state, such as compulsory acquisition and the right of reversion to the state in case the owner dies without any heirs. However, in the case of customary estates, the residual right of reversion is first, to the traditional authority and ultimately to the state.

4.5.1 Customary Land: By definition, customary land is all land falling within the jurisdiction of a recognized Traditional Authority, which has been granted to a person or group and used under customary law.

4.5.2 Customary law comprises rules grounded in prevailing customs that are applicable to particular communities. As a result, customary tenure is the right to own, use or dispose of land rights not based on documentary evidence guaranteed by government statute, but based on customary laws and on the fact that they are recognized as legitimate by the community, enforced in the customary courts, or even merely by social pressure and normally not recorded in writing.

4.6.1 The customary tenure system forms the basis of Traditional Authority and has remained central to cultural identity and social organization in Malawi. Failure to recognize the authority, from which customary land title has devolved, would leave a gaping hole in the evolution and statutory recognition of customary land tenure as a right protected by the Constitution.

4.6.2 In the past, land under customary tenure has been treated as a subset of public land, vested in the President under the Land Act, and has been taken by the state without adequate compensation and allocated as leasehold estates from the state. Although, there are no comprehensive maps showing the boundaries of traditional land areas, this Land Policy calls for a return of land administration to Traditional Authorities by requiring the following actions.

4.6.3 This policy would ensure that traditional leaders retain a copy of the survey plan attesting to the land area demarcated and registered as the land management area of the Traditional Authority.

4.7.1 Communal land rights in Malawi are closely connected to ethnic identity and Traditional Authorities (TA’s). This creates a powerful system of land allocation regimes and a tenure system designed to preserve the asset base of the community for current and future generations. People traditionally see land and kinship in a genealogical map through which access to land is reached. Families and individuals are allocated exclusive fee simple usufruct in perpetuity, subject only to effective utilization. However, the radical ownership remains in the Traditional Authority.

4.7.2 Customary law restricts customary allocations to usufructuary rights because, in principle, customary title is vested in traditional leaders on behalf of the people. Total alienation of any of this land, such as by granting freehold title to non-citizens, diminishes the land assets of the community specifically affected, and by extension the nation as a whole.

4.7.3 However, because the interest of the proprietor of a customary estate is usufructuary, the registration of a sale, lease or mortgage is not with absolute title and will be subject to what are known as overriding interests of the community and the sovereign rights of the state (e.g. mineral rights).

4.8.1 The term "freehold" originally meant that the land was held by services of a free nature and not that it was free from all rent and conditions, as its name seems to imply. The term freehold expresses not only the quality of the tenure but also the quantity of the estate. For example, the fee simple estate refers only to the right of inheritance to general heirs. This is different from the fee tail, which restricts inheritance to particular heirs. Furthermore, a life estate allows a tenant, for example, to use land exclusively for the duration of that particular person’s life only.

4.8.2 Thus although freehold tenure has become synonymous with absolute ownership, it is the estate, which defines the peculiar tenure, or the terms upon which the claims of the owner is to be based. Leasehold tenure, on the other hand, is simply a personal contract granting the exclusive right of use of land for a fixed period shorter than the private ownership rights held by the person issuing the lease.

4.8.3 Freehold tenure has some unique features that provide security of tenure and exclusive user rights:

(a) A freeholder has exclusive possession of the land in perpetuity. There are no term limits placed on the title of the owner.

(b) Subject to land use planning, the owner has the right to subdivide or lease the land, etc., without seeking the government’s approval.

(c) No development conditions are imposed on the owner if the land in question lies outside the boundary of a planning area.

(d) The Government has no legal right to interfere with the occupational right to land.

4.9.1 All leasehold interests are necessarily derived directly or indirectly from a superior tenure holder, the owner. The right to use land created by granting a lease, irrespective of the tenure regime, is private and formally restricted to the term of years and the conditions (covenants) defined in the contract by the grantor or landowner. However, the reversionary interest would remain vested in the landowner even after a lease has been granted.

4.9.2 Leasehold rights granted for both agriculture and building purposes allow the tenant to occupy and use the land for a specified term by paying a rack rent, which may be fixed by reference to the value and location of the parcel. Under common law, such leasehold agreements normally require the tenant to submit the land or building in good repair to the landlord at the end of the lease term, or to compel the landowner to renew the lease or sell the reversion to the tenant.

4.9.3 Leasehold estates created by the state currently confer rights of private use and are protected by current law. However, similar private leasehold arrangements in respect of customary land has not, in the past qualified under statutory law as granting "private land" rights. Full legal status as private land has been recognized only when customary land has been registered by the Registered Land Act as "customary freehold" or "Ndunda" under the Customary Land (Development) Act.

4.10.1 In accordance with current policy, the state acting as a trustee on behalf of the customary landowners, can grant leasehold rights to third parties. However, the state is expected to do so as a trustee under fiduciary responsibility to the owners. That is, the state would be required to pay compensation to owners deprived of the use of their land or to relinquish part of the rack rent paid by the tenant to the owners. Furthermore, ownership and control will revert to the customary owner(s) at the end of the lease and cannot automatically shift title to the state.

4.11.1 Malawians regard access to land as a fundamental right. However, people’s demand for land is not for the land itself, but for farming, residential and investment purposes. As a result, demographic and economic pressures as well as the capacity to mobilize capital or access credit to develop land affect demand. Access to land is also, affected by the number of people wanting to hold land as an investment and the incentives to do so as a form of security.

4.12.1 Under the present land law, any person, a citizen or foreigner, can apply and be allocated land for any permissible use ranging from residential, industrial, agricultural and ranching. Regulating non-citizen ownership of land in a small nation such as Malawi is a principle employed by a number of countries to prevent citizens from becoming landless in their own country. To prevent any future problems of this nature, the following policy regulating land access for non-citizens and foreign companies will be affirmed by statute:

4.13.1 With the exception of a few very special types of investments, such as mining, forestry and some perennial tree crops such as tea, most leasehold terms for industrial and commercial investment purposes throughout the world generally are for less than 50 years, with renewal clauses allowed. For that purpose, the standard leasehold term for land leased for investment purposes in Malawi will also be for 50 years or less.

4.14.1 At present big parcels of land are allocated to individuals, private firms and foreign investors regardless of their proven ability to develop them. As a result, large areas of land remain undeveloped or are held for speculative purposes for several years. This has happened, for example, in the Mulanje, Thyolo and Kasungu Districts, and in urban centers particularly, Lilongwe and Blantyre. If due care is not taken villagers in such high population districts and some residents in urban centers will find themselves without access to land even though vacant and undeveloped parcels of land exists.

4.15.1 It is possible that land that is held privately is required either for government use or for redevelopment, and that the Government might be inhibited if the required land is not made available when needed for development projects. Therefore, it is necessary to have provisions in the land law giving the Government the opportunity to acquire any piece of land required for public services.

4.16.1 The Government has a duty to protect the free enjoyment of legally acquired property rights in land. For that reason, a landholder is entitled to compensation if the owner’s property happens to be acquired by the Government for public use. In most cases landowners voluntarily allow their land to be used to fulfill the government’s development obligations. However, to be made whole, the amount of compensation paid must be fair and adequate

4.16.2 The notion or belief that customary land has no value has been a big hindrance to offering customary land as a share in negotiations to create joint ventures in various projects. This notion is wrong because land has value as a scarce resource and has other physical and intrinsic attributes that also contribute to its economic and social value.

4.17.1 In a growing market economy, the value of real property will be determined under open market conditions. However, customary tenure, in the past, sought to preserve the community’s land assets by discouraging sales. Dispositions through the property market occur mostly in the main cities of Blantyre and Lilongwe with minor compliments from Mzuzu and Zomba where freehold and leasehold tenure predominates.

4.18.1 Malawi is moving quickly to transform its predominantly communal subsistence economy to a market driven economy based on private property and free enterprise. This exposes most rural families and small holders to the risk of loss by sale and racketeering by unscrupulous persons and real estate agents. In recent times, market driven liquidation of leasehold estates by sale have increased rapidly in rural areas. The bulk of such auctions have occurred in the South and Central regions, although sales in the area around Kasungu are also on the rise.

4.18.2 To protect against the potential loss of customary land by small holders and other vulnerable groups ignorant of their property rights, the Government will assert the following regulations to protect against fraudulent transactions involving customary land:

4.19.1 There are two possibly negative consequences to the titling of family property in the name of the household head. (i) In some cases, these individuals may begin to operate in the land market independently of the other members of the family, and may thereby deprive the family of the benefits of property ownership; (ii) When the person named on the Land Certificate is absent from the household, the family members who actually manage the property will not be able to use the property as collateral or present it as having secure tenure to the land.

4.20.1 Granting land tenure security to investors, developers and individual households in urban areas aim to encourage planned development and to ensure a timely and effective utilization of land. Speculative holding of land greatly interferes with the desire of the Government to encourage a fair distribution of land to the users. Speculation also promotes illegal and unplanned development. It encourages urban sprawl, increases the cost of delivering services and creates an artificial shortage of development land. For speculative profits, some landholders sell their plots when they are still bare or undeveloped or just a short period after acquiring them.

4.20.2 The allocation of development rights to urban land and the encouragement of planned and systematic development of prime commercial real estate in Malawi’s urbanizing areas are strategies designed not only to make urban centers attractive to business, they are also intended to improve the aesthetic quality of the built environment and the welfare of citizens. The provisions for preventing land speculation exist under current planning laws but are rarely enforced due to inadequate capacity in the Physical Planning and Development Controls division.

4.20.3 Faced with growing urban land pressure and rapidly rising cost of supplying urban services, the Government will support Local Assemblies in developing the capacity to employ existing anti-speculation and anti-hoarding policies and to employ other methods generally used in other countries to fight this growing problem. This policy may be summarized as follows:

4.21.1 The social function of land is defined as the most socially desirable use of land considering the location and scarcity value, its physical and environmental attributes and the appropriate land management plan for its effective utilization.

4.21.2 The socially desirable use may be based on cultural, economic or social consideration. The cultural and environmental criteria may justify the preservation of sensitive areas, historic, sacred or scenic sites. Similarly, the economic criterion allo