Zambia's chiefs are crucial partners in all that happens on customary land. They administer traditional land in line with their customs and traditions, beyond that, they are arbiters who resolve a range of issues affecting their subjects as relates to land. But with the incoming need of documenting land, they now stand at the centre stage of being the key player in the documentation process.

 

Clarity is required from USAID on their land titling efforts in Eastern Province and elsewhere. Is this code for the alienation of customary area to leasehold, or simply the issue of land certificates as Chief Ndake is doing?

The government’s role on customary land is based on the Lands Act of 1995 together with the procedures as laid out in the Land Circular of 1985. Specifically, for any grant of land to be effected on customary land the local authority (the district council and the chief) must recommend to the Commissioner of Lands such grant. The Commissioner of Lands will make sure that the recommendation is accompanied by the Chief’s written consent and minutes of the Full Council.  In respect of planning customary land as well as maintaining Forest land in customary areas the government relies on Urban and Regional Planning (URP) Act of 2015 and the Forest Act of 2015 respectively. The URP Act provides for the preparation of Integrated Development Plans in all planning areas which include areas under the jurisdiction of traditional authorities. Section 25 of the Act provides for local authorities to enter into planning agreements with chiefs in customary areas. The Forest Act provides for sustainable utilization of forest resources in both customary and state land.

 

A number of important issues/questions have been raised in this discussion already. But I thought the topic for this week is "Context of Customary Land in Zambia: What are the challenges?". As such I will restrict myself to this topic.

Some of the challenges include:

- unorganised land use planning 

- illegal 'trading' of customary land, motivated by the fear of the landless future at household/family level but without capacity to utilise newly acquired land

- power concentration in individuals rather than having strong institutions. Power concentration is at all levels (National, chiefdom, village, household)

- lack of say by the people, leading to land displacement

- massive public ('unschooled' and learned alike) ignorance about land administration - with many people leaving or using land without know its legal status. Others simply do not know the value of their land.

- weak enforcement of land laws, sometimes exacerbated by resource starvation of land institutions 

- unclear national vision on land - demonstrated by lack of a comprehensive land policy 50 years after independence 

- land degradation

- limited research 

- 'etc'

These challenges require concerted efforts and most of all political will to be addressed.

The increasing attention on customary land tenure towards customary land administration is related to an increasing need for strengthening of customary institutions. Statutory tenure and the customary tenure often co-exist especially at the local levels. Worthy to mention is that customary tenure have survived from colonial period to now and have continued to play a vital role in customary land administration. Customary land tenure has an important role to play as effective powers on the ground.

Historically customary and statutory land tenures have been intertwined, and part of the legitimacy of customary land tenure derives from state recognition.

Recent efforts of including traditional chiefs in land administration at local government meetings have shifted the focus to existing social and political structures at the local level. With little regard to customary land structures, such actions are likely to fail. Further, this inclusion is not without problems. The inclusion of customary institutions into government structures is a way of dealing with the reality of weak state performance in customary land administration.  Strengthening of customary land tenure can mitigate the harsh reality of states weak performance.

Customary land tenure in Zambia exists in complex relations to their local constituencies and the state. This complicates their integration into modern Zambia. Besides, customary land tenure institutions are close to their people and can help with the provision of basic services and the improvement of the social and economic conditions at their local level.

Customary role has always been betwixt and between, that is, being accountable to their customary constituencies and simultaneously to government. The complexities of this dual system have not easily been resolved in the constitution.

Dear Jur - Thank you for this question, which deserves discussion, and I hope others will respond with their thoughts/opinions. It is true that in many cases historically customary law has not been recorded, but this does not mean that it cannot be codified, or best practices identified and shared among customary leaders. According to custom, when an individual leaves one chiefdom and moves to another in Zambia, a traditional leader will often write a reference letter for the individual and the individual will apply for land with a new chief. In many cases, the new chief will write a letter and stamp it to say that they are allocating the individual land in a particular village or area. Similarly, a chief may write down customary rules for new members of the community to follow. Just because a chief choses to record their customary decision does not turn it into "statutory law."

Customary law (and indeed decisions made under customary law, such as the allocation of land rights) can be written down, and indeed there has been hesitance to do this among some because a common feature of customary law is that it evolves over time through customary practices. Writing down customary law can be seen to limit this evolution, or indeed the flexibility of the customary leaders. However, one of the benefits of documenting customary decisions on paper is that it may be used as evidence, particularly where two customary leaders or the state and customary leaders clash. We have seen evidence in a few Zambia cases where a chief's documentation of a person's customary right has allowed the individual landholder to contest a subsequent allocation of land to another person.

So we do need to differentiate a bit between:

• documenting customary law (writing down the actual rules), and
• documenting customary decisions (writing down the decisions of customary leaders as evidence of individuals' rights).

In the case of customary land documentation, I believe that the documents reflect the documentaiton of customary decisions.

I look forward to seeing other contributions on this statutory/customary law and land law dynamic.

The figure of customary area covering 94% Of Zambia I am partly responsible for - I had included trust land handed over by chiefs for protected area, some 20%. That put customary area at about 74%. However, USAID considers that another 10% has actually been alienated. Thus customary area makes up 64% of the land.

Something not taken into account is that many of the forest areas and parts of some national parks have been taken over by their former commons owners. The West Mvuvye National Forest has seen the invasion of Ndake's people, and the illegal sale of part of it by Chief Mwape (her mother doing the same in league with the Petauke District Council). The grabbing of protected forest land is a massive scandal, as in the alienation of customary area to commercial farming blocks - without the permission of its traditional owners.

The 1995 Lands Act set in motion the landgrab

The protection of women is a major priority. The Drawdown Project established to deal with climate change considers that Educating girls - their wellbeing, education, and security of tenure in customary area is essential. The current oppression of child marriage, sexual cleansing and the like, needs to be tackled by a more aggressive education system, appropriate legislation, and strict cultural controls imposed by the chiefs and headmen. And most important, given Zambia’s surging population increase of 3%, women need massive help with family planning. Giving them secure usufruct rights to land is absolutely essential.

Thank you Henry for these comments and diving into the challenges and context (we look forward to your inputs throughout the dialogue). Do you see any positive momentum to address these challenges? Do you think the upcoming Land Policy is going to help to put CSOs, government, citizens and traditional leaders on the same page and set a common agenda? Or are the pressures too great at the moment. 

ian, you seem to suggest that the protection of commons is better suited by it not being documented and that upon documentation there is every likelihood of a "plunderer" appropriate such commons. However I take the view that society is evolving quickly and large scale land acquisition are taking place in areas where there is no documentation- and yes even in the commons. The protection of communities from the plunderers requires stronger institutions in land administration above the chief only. The chief might well be a custodian of land in customary areas but what is emerging is that the temptation to give out that land is getting greater and without evidencial documentation it will only get worse.

Many thanks for all these very interesting reactions to my question, which, perhaps needless to say, had a subtext. I sometimes wonder why it is considered so important to respect and consolidate the customary rights modality. Matt gives some good reasons (accessibility, local understanding), but from a viewpoint of equal rights for all citizens (and people who live in remote communities are citizens of the country they live in) one could argue that the co-existence (and occasional overlap) of two systems is undesirable and confusing, not to mention the risk of condoning regional isolatonism, or even tribalism. In that sense, I fully agree with Emmanuel: "The protection of communities from the plunderers requires stronger institutions in land administration above the chief only.".

And so, up comes again the question that we have to face: at what point 'customary' becomes 'statutory', even if many people would not like that? The abstract announcing the study by Rachael Knight (thanks for mentioning it, Matt!) is a case in point: "Protecting and enforcing the land rights of rural Africans may be best done by passing laws that elevate existing customary land rights up into nations' formal legal frameworks thereby making customary land rights equal to documented land claims." Again, this contradction in terms: in my view, when something is part of a nation's formal legal framework, that makes it by definition statutory.

Perhaps it would be interesting to invite Rachael to this discussion, Matt? 

Finally, I am used to my surname being misspelled, with great frequency and in many variations: Schurman, Schurmann, Schuurmans... But Ian set a new standard by taking out one third of my first name, transforming Jur into Ur... ;-) just making fun, no problem there!

The role of Government on Customary land is to ensure that the urban elite do to not displace local inhabitants. It is also to ensure that progressive customary land practices are encouraged.

The Urban and Regional Planning Act of 2015 provides for planning of customary areas in consultation with traditional leadership. Although the actual operationalization of this Act has not been seen, the Act provided a very progressive entry point for enhanced interactions between chiefs and government. For these interaction to be successful, there is need for trust between the two parties.

Traditional leaders would love to get more involved in customary land administration and management as opposed to just being custodians, just to issue a customary land certificate to their subject gives a sense of responsibility and the need to build their capacity to manage huge data sets. In Petauke customary land documentation undertaken with Chief Sandwe with support of USAID where more than 8000 parcels have been demarcated for the chief to issue customary land certificates has attracted the attention of the Zambian government into whether they could adopt the documentation process elsewhere in the country.   

I agree with you on the challenges faced under customary land adminstration, however i feel that we need to look further and userstand why customary tenure has such problems???? Zambia has laws and policies and customary land adminstration is encompssed , therefore to some extent i feel that it is infact the weak laws and policies, the absence of certain pieces of legislation around land that has resulted in all these challanges.

I believe that if we have to address these challenges under customary tenure let us focus on what is working on the ground and improve on that> for example the customary land certificates which were piloted in Eastern province, this is a concept already working and being followed by the chiefs only that it needs to be improved in one way or the other and needs to have the same strengh and authority as a title deed.

The issue of power concetration in an individual instead of a strong structure, there is always a structure of adminstration and this is the structure that needs to be strengthened so that chiefs can listen to the advise  by their indunas, this coupled with a community of well enlightened people will result in the reduction of these challenges.

There is some land use planning going on in customary areas, each community member knows where animals graze, they know where to collect mushroom and firewood, they know where villages are and farms and many more, therefore there is just need to enhace what is already on the ground and we will realise that after all customary land adminstration is not that bad at all.

Zambian lands legislation, Zambia has a dual system of land tenure of customary and leasehold tenure. The official documents insist that land is vested in the President on behalf of all Zambians. However, this legal stance has not been well received and agreed to by many customary administrators. The customary administrators hold that if land is entirely vested in the President, then they have no chiefdoms to rule. This legal position is still a challenge to customary administrators who have not agreed to it. And by so doing, the issue hangs in a pandemonium.

People especially the politicians; have argued that customary administrators have been a hindrance to foreign investors and many government projects. Some political illustrations have been drawn from the Barotseland agreement 1964. They insist that all land should be vested in the President.

Customary tenure provides its land on the basis that one has the right to land for as long as they live on it, and if they migrate such a piece of land is returned to the customary administrators. However, some have argued that this is a barrier to development because other people may fear of losing property if they invest and later decide to migrate to other chiefdoms.

Despite serving under the governments’ ministry of chiefs and traditional affairs, the customary administrators have no land policy (SI) to legally back them in customary land administration. Such a policy (SI) can enhance security of tenure for its people who are largely in the minority groupings.

Dear Nsama, 

Thank you for this contribution, which opens up a critical point and one that I hope more people will respond to. In many post-colonial countries, the state asserts commercial rights to forests, wildlife and minerals. Therefore, best way for someone to assert their right to land and benefit, is therefore to clear it of state resources (forests and wildlife), and replace with crops and livestock (which can be owned unambiguosly by the landholder). 

Where do you see opportunities for power sharing to be clarified? Does Community Forest Management or Joint Forest Management offer a solution? are there mechanisms for community wildlife management? Are communities benefiting from minerals found on customary land?  

Dear Jesinta, 

I agree with you that effort needs to be placed in strengthening local governance institutions. Yes, land and resource legislation can and perhaps should be ammended to allow communities great rights to make decisions over the resources on their lands, but at the same time, Chiefs and headpersons (who have legally defined responsibilities) require training on the existing structures open to them. I have heard that historically newly gazetted chiefs would attend a training at the same government training center that local government staff attend, but that for some time this has not occurred in some time. Before we overly criticize customary land governance institutions we need to better understand the resources and guidance they have access to. I fully agree with your comment that communities know their resources and that governance institutions need to be close to the communties. The presence of the chief and his/her governance structure within the chiefdom, is a major reason to work with this instution rather than expecting the Ministry of Lands or Forest Department to be able to cover the areas far from their district or provincial offices for the forseeable future. 

1. To ensure it is totally protected from alienation in perpetuity: On 12 May 2017, Hilal Ever, the UN Special Rapporteur On the Right to Food weighed in with the following:  “Customary land rights should be put at an equal standing with state land in order to protect the rights of those living on customary lands.”
2. To cease establishing any new farms blocks on land alienated from customary control. Any commercial investment should be done by way of a land trust where the land is never alienated to leasehold
3. To compensate the victims of the alienation
4. To transfer renewable natural resource rights from the rent-seeking state to the customary commoners.
5. Mineral rights royalties to be paid into a Permanent Fund by the state, with annual share payment to all village commoners over the age of 18.

I agree with both Jesinta and Matt. Customary institutions are in place in most chiefdoms. The challenge is their capacity 'status'. With the changing environment, most of them, particularly those which do not have access to information and training, have very limited capacity to deal with complex land challenges which beset them. They need support. 

Indeed Jesinta on the issue of land use planning, many customary land inhabitants 'plan' use of their land, and they have done so for generations. The issue is whether the current planning methods can cope with the changing environments (population expansion, land investment pressures, land degradation, etc). Again the key issue is capacity to handle complex planning challenges and how to update their customary methods of planning. Capacity strengthening is key here as well and that’s a huge task we are faced with here in Zambia. The new planning law is, I believe, a great opportunity for them. Capacity strengthening will be required in implementation even if we end up with a good land policy.

Matt, indeed the media tends to focus on problematic areas of customary land administration. It is a culture that needs to be changed. Many chiefs out there are doing noble work that needs to be brought out. But remember, it’s what we are all accustomed to –what surprises people is what is termed as news. My personal view is that IAPRI has done good interesting on land, though not on the total scale of land investments across the country. A survey on good governance can be of interest though may require some thoughts as to whether it is in line with the institution’s research plan, and resources of course.

Thanks Matt,

We will have chief Sandwe submit on his views about the role of chiefs in customary land administration. I am sure it will be interesting for everyone to look out for this opportunity

For a successful customary land documentation process, you need to build the capcity of traditional leaders mandated to manage customary land who are chiefs and headmen. Resulting from documentation are land conflicts which have to be managed. Huge information which needs to be kept and updated. Therefore training of these land administrators in land conflict resolution is key just like is with data management especially at chiefdom level.

Garikae,

The issue of trust between Government and Traditional Authority is one that requires closure especially that the URP Act is in place and requires that ALL land is planned. The fear by the Traditional Authorities is that if land is planned and by extension "administered" by government what authority will they have over the land themselves? Assurances that they will still be consultant on issues of land alienation might not be sufficient to placate their fears. On the other hand, the Traditional authorities have been the main culprits in allowing unplanned development in their areas. This leads to high costs when government wants to provide services in these areas. It is government's responsibility therefore to ensure that the law is followed by all parties-whether such enforcement may not be taken kindly by the traditional authorities is another matter

Dear Mattsommerville and Jur,

I will add my opinion on this subject based on my personal experience of living and working with traditional leaders in Luapula Province. Yes for a long time Zambia's culture and custorms have been preserved orally which has caused a lot of values and norms to be lost because as the old generation is dying out so is the history. For sure chiefs in the past administered land and natural resources such as forests and wildlife orally but following the demand for land by both government and the citizens, they began to issue land certificates. First the village head person issued a letter of offer and did the allocation part, including entering the applicants details in the village register, kept by the village secretary. The chief through his retainers played the final role of inspecting the land allocated, and issueing the certificate. During inspections issues of dambos, rivers and communial grazing lands are preserved and people in customary areas know this law by heart. However the challenge here is that, though chiefs have been documenting their work, it is only recognized at grass root level because to some extent customary law is isolated from statutory law. While chiefs are ambitious to protect their rights and resources, the majority are illitetate and because customary land attracts no rates or taxes, they have no source of income hence being dependant on government, a situation which has weakened chiefs as they are afraid to bite the hand that feeds them. 

In conclusion having guidelines for customary land and natural resource management will not change the customary status but upgrade it to customary written law. If such a situation ever happened, poverty in Zambia would drastically reduce as people will securely and proudly own and manage their resources without fear of unfair displacements as it is today. 

Maybe the question to worry about is how will chiefs enforce their customary law without government interference?

Interms of accountabilty, where the chief violates the peoples rights, where do they take the case since he is the chief justice in a traditional court setup?

Thank you very much for the questions that will help me expand on my post. The future for power sharing in the rural areas is quiet uncertain at the moment reason being

1. The Zambian people are divided into two power categories..one in which the learned who understand government policies captilize on the opportunities and invest and the second in which the unlearned who dont understand policies fear government law enforcers such ad foresty, fisheries, wildlife and mines because they do not know how to legally invest in these sectors.

While the revised forestry, national parks and wildlife and mine and minerals acts recognize community forests and promotes joint management, the majority in rural areas do not understand these new policies. They lack information so much that they rely on their own understanding. If the tural poor can access information and be part of decedion making in an environment that has no intimidation, they would be agents of the change we all want.

2. Wildlife management has been left entirely to government, people do not understand the value of wildlife and currently (wetlands of national importance-Ramsar sites, national parks and GMAs) are under serious threats of habitat loss because as the population grows people need land to settle and without conservation knowledge they demand for degazzetion of protected areas.

Despite this challenge, if the people understood the benefit of wildlife and are made entitled to revenue sharing..they would actively participate in management.

3. People who dont own mines dont benefit from mineral resources. The mine owners pay tax and the rest goes to them. The mines and minerals act still over shadows the land act, meaning to date all mineral resouces belong to the state and the only way one csn benefit is by way of licence.

Here the opportunity for people to benefit is regulating the licensing for development minerals, though it has low value, people can easily access it at a lower mining cost though here i must say the environment could be endangered unless protective measures are strictly put in place.

I think your point on township expansion is a good one. From the few cases I've followed, the township boundaries were expanded to the council, who then "planned" the area for development. But the development was for traders, businesses and those who had money and interest in building houses on small plots. The previous customary residents were not compensated for lost property, in the best case, they were offered a residential plot, which they often did not have the capacity to develop. These former customary households, finding no opportunities in the township, then went back to the chief to ask for land, elsewhere. The traditional structures are therefore left to deal with these resettlement challenges. Marrien Kalapula did a very nice study of this case in Lundazi, which I will try to attach as a resource. 

It is not surprising to me therefore, that a chief (or peri-urban headperson or household) would wish to sell off their customary land before it is planned by council expansion without compensation. This leads to another question, should the sale of customary land be legalized with conditions (for example among Zambians or for non-commericial uses). 

Interesting contribution, Moses. As we unanimously agree that there are issues with land governance in Zambia, I believe we need to make a systematic attempt to identify what the challenges are and 'design' what the legal system needs to be like to appropriately respond to the challenges. What should the legislation be like? What socio-economic dynamics and government development priorities need to be reflected in the legislation in a multi-cultural country - given that customary land administration is inspired by cultural norms? These might not be peripheral questions to a discussion that seeks to improve the welfare of the poor and the powerless in our midst.  

Land legistration or titling in itself is far from being a panacea to the land challenges that Zambia is facing. An interesting study by Admos Chimhowu and Phil Woodhouse (Customary vs Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa, journal of Agrarian Change, Vol. 6 No. 3, July 2006 pp346-371) indicates that titling of customary land commoditises it and 'opens the possibility of distress-sales by the poor in times of hardship, thus accelerating social differentiation and landlessness among the poor.' This is something to be fought against in a pro-poor land policy or any other land legislation. There is work to be done to ensure an initiative such as land registration yields positive, desired results.  

Hi Matt,

     I think the way forward is to enact laws and policies that will cut out and strike a balance between current national legal frameworks and customary land rights. Let’s learn from Tanzania “Improving Land Sector Governance in Africa: The Case of Tanzania Paper prepared for the “Workshop on “Land Governance in support of the MDGs: Responding to New Challenges” Washington DC March 9-10 2009 by J.M. Lusugga Kironde.

     Among other insights, Tanzania embarked on a land law and policy reforms, cutting down through various stages of land administrations and striking a sustainable stance. At least, each customary land rights stage is addressed in the national constitution (i.e, Individual level, village/community level etc). Once there is total legal recognition of customary rights by enshrining them in the national constitution, many ambiguities, largely political, and overlapping legal interpretations will decrease drastically.  

Matt wrote '...if this (decentralisation) occurs what will the relationships be between traditional leaders and district government?'

There are of course crucial resource constraints to be addressed in relation to decentralisation. If these constraints are addressed, I would propose a devolved, transparent, inclusive and accountable institutional framework in which land and resource ownership vest in chiefs and headmen who hold it on behalf of the people. A representative committee of elders/indunas supported by a few technocrats to allocate rights to land/resources and finally a different team of technocrats at district level doing the land administration. It is hoped that such a separation of functions will limit the abuse of power. With such a multiplicity of structures, there will be need to clearly spell out the roles and responsibilities of different institutions to avoid conflict and duplication.

'Where do you see opportunities for power sharing to be clarified? Does Community Forest Management or Joint Forest Management offer a solution? are there mechanisms for community wildlife management? Are communities benefiting from minerals found on customary land?'

Partly respoding to the above.....  

The mapping and documentation of village boundaries presents an opportunity to assert and demonstrate community ownership of resources. Security of tenure, strong and representative institutions and demonstrable community benefits are crucial to setting up successful community or joint management structures.

However for this to work, communities should be capacitated with strong negotiating skills in order to counter the powerful external forces which are often aligned to the holder of the radical title – the State. Advocacy groups can be enlisted to work with traditional authorities and external private sector interests to create a win-win situation.

I know the heading sounds like we are prying into people's private lives, but hey this is about Documenting Customary Land Rights! 

What are we documenting and for what purpose are the rights being documented?

Interest in Land - Different approaches and safeguards need to be established and put in place depending on what rights (communal or household) are being documented so as to guard against unscrupulous people or organisations usurping these rights to themselves at the expense of the community or household.

Mapping accuracy - The rigour with which we map communal resources such as a dambo, forest will be different to how we map a private field or indeed a private homestead. This brings in the issue of measurement techniques and standards.  

Coordination, Quality and Standardisation -  I am aware that apart from the just ended TGCC project in Eastern Zambia, there are at least another two similar trials in customary land documentation. These pilots are generating a lot of useful information as well as developing useful tools and techniques yet it appears there in no coordination from the Ministry of Lands and certainly little to no involvement of local licensed land surveyors. As a licensed land survey practitioner I am worried that although we are key stakeholders in land alienation and registration we not been actively engaged in the ongoing innovative pilots. There is no doubt that data generated by these plots could potentially prove very useful in helping populate our developing National Spatial Data Infrastructure and also contributing to the National Land Titling and Land Audit Programme hence all the more reason why coordination, quality and standardization issues are important.

Thanks Emmanuel,

I think its important that key stakeh0lders, pilot in different places and methods all point to the fact that something needs to be done to improve the entire customary land administration in the country. We are actually happy to interact and share information about process, tools and what we have done so far with surveyors in Zambia. I am sure that the Ministry of Lands, Dept of Resettlement etc, have viewed and seen the data we have and are ready to share for purposes of ensuring that relevant laws are relaxed to accomodate such innovations that might lead to speedy titling of land in Zambia.  

Steps to doing preliminary data recording:

1. Collect background documentation from ministries responsible for land and local councils and integrate into GIS

2. Integrate into GIS use with chief and ministries as part of land-use planning processes

3. Meetings with Ministry of Chiefs and Traditional Affairs, Dept of National Parks and Wildlife, local Council, Forest Department and others to make data useful and accessible

Emmanuel - 

As we move into the discussion on customary land documentation, you identify some important points, particularly around the documentation of communal resources. For the community: What are the options for registering communal land in Zambia? Is there any legislation to protect dambos or forests (that are not National Forests)? Do you feel that customary law protects household rights to agricultural land equally to community rights to seasonal access to forests and grazing areas? 

Thank you Kusiyo, 

Can you describe some of the common areas in which the systems differ, perhaps by ethnic group or other elements? Certainly customary fees may differ, or the person that one would go to see, perhaps the rights to exclude grazing animals from property could differ among chiefdoms. 

Dear Participants,

Many thanks for your contributions to this important discussion, ‘Customary Land Recognition: Zambian Approach to Documentation and Administration.’ In some way, the first week has been a curtain-raiser, but more than that, the week offered all participants an opportunity to bring to the fore of the discussion issues that land governance in Zambia is plagued with.

During the past week, the discussions touched on the pivotal role that chiefs as custodians of customary lands (can) play to ensure the rights to land of their subjects are protected. Chiefs are agents of change. A historical background and evolution of Zambia’s land tenure system as promulgated through the nation’s legal system was discussed. Challenges of the existing system were extensively discussed. Cited challenges included: power concentration in individuals rather than strong institutions; illegality/corruption when ‘trading’ customary land; limited research that limits evidence-based decision-making processes; illiteracy coupled with lack of sensitisation campaigns that should empower communities who are the primary stakeholders; and absence of a comprehensive land policy that reflects the local as well as national socio-economic and environmental interest. Other challenges included the (wrong) perception that Zambia has abundant customary land. Currently, research suggests that land under traditional administration is way below 94% that appears on paper. This (wrong) perception has implications on development priorities that the government sets on customary land. The bifurcated land tenure system and the manner in which it is administered in the country has created a ‘State vs Traditional,’ an ‘us vs them’ situation. In some (if not, in most) cases, this has led to an antagonistic rather than synergistic relationship between the state land administrators and traditional authorities.

To respond to some of the challenges above, the proposed recipe of solutions included: documenting customary land rights; clarifying what should be documented and by who, for who, for what and how; establishing trusts in rural areas; devising mechanisms for power-sharing; certifying customary land; giving customary land the same legal standing as state land, duly compensating victims of land alienation; halting new farms blocks on land alienated from customary control; transfer of renewable natural resource rights to customary land commoners; and payment of mineral royalties into a Permanent Fund. 

The discussion and enriching submissions last week correctly set the tone for this week’s focus on documenting customary rights – how to do it and how we can improve on it. It is a week of proposing feasible responses to the pressing challenges that were identified last week. We are all looking forward to yet another exciting week of discussing customary land recognition in Zambia.

Emmanuel, While agreeing with you on the concept of a devolved governance model made up of indunas and a few technocrats, and another layer at district level, I have a challenge on the financing model of such a proposal. At village or chiefdom level are we able to summon resources to make such a model work? Needs must be that we however do need such models especially in the context of the local area plans that are proposed in the enacted Urban and Regional Planning Act. Would we need a specially enacted Customary Land Act which will cover the administration of such land? Or should we have one Land Act which include a big Section covering Customary Land Issues and how to handle them. Also in terms of information management should we also contemplate a customary land information system outside (or linked to) the Stateland Information System (ZILMIS)?

It would be great to discuss documentation for sustainability. Key to this is that documenting reserve lands within communities for future allocations is cardinal, creating an u nderstanding within communities about common resourcs and who governs them. There is need as well to support strengthening local governance structures for purposes of improved land governance, perhaps one may think about natural resources management rules which include necessary enforcement mechanisms. 

Barotse Land Management System

Historical Background

Western Province is one of the ten provinces of the Republic of Zambia. Before Zambia’s independence on 24th October 1964, it was called Barotseland Protectorate. The first known leader was a woman called Mwambwa who was later succeeded by her daughter Mbuyamwambwa. She was succeeded by her son the first Litunga (or King) Mboo Muyunda. The state expanded under his leadership by sending his brothers and other relations to the surrounding areas to establish Lozi rule.

On the advice of his counterpart King Khama of the Mangwato in Bechuanaland and Francois Coillard of the Paris Evangelical Missionary Society, King Lewanika I accepted the British rule so that he would be protected against the impending German and Portuguese invasion and periodic Ndebele raids. On 27th June 1890, King Lewanika I and the British South Africa Company signed the Frank Lochner Treaty. The signing of the Lochner Treaty marked the end of the Lozi autonomy as it now become a British protectorate.

On 18th May 1964, Sir Mwanawina III Litunga of Barotseland and Kenneth Kaunda Prime Minister of Northern Rhodesia signed the "Barotseland Agreement 1964" which established Barotseland's position within Zambia in place of the earlier agreement between Barotseland and the British Government. The agreement was based on a long history of close social, economic and political interactions. The Barotseland Agreement granted Barotse authorities and people specified limited local self-governance rights and rights to be consulted on specified matters, including over land, natural resources and local government.

Barotse System of Government

The Barotseland gained a special status under the British Colonial system as a British protectorate. Overall power over land was vested in the Litunga (King), through the Barotse Native Courts Ordinance Act (1939). This was later repealed after Zambia gained its independence bringing the province under the statutory law of the land. However customary laws are still firmly established in the province due to its special status, autonomous history and strongly centralized traditional laws and court system (Gils, 1988). The Barotse Royal Establishment is the custodian of the traditional laws and court system.

Governance Structure

Barotse system of government is of five tiers or levels. Starting from the central government to the village level.

Namuso: The first tier of government is referred to as Namuso (literary the Mother Of Governments.) This is the central government of Barotseland. It has the Litunga as the Head of State and the Ngambela as Prime Minister. The Ngambela is the political, administrative and judicial head of the Barotseland. Second to the Ngambela is the Natamoyo. This title means “Master-of-Life” or “Redeemer”. He has the power of sanctuary or refuge in his person and house. The Ngambela works with other Indunas (Ministers) in-charge of specific sectors such as health, forests, canals, wildlife, etc.

Lwambi: The second tier of government is the regional government of the southern part of Barotseland, which is headed by the Litunga-La-Mboela, which means the Litunga of the South. She has the Sambi as the political, administrative and judicial head of the southern region of Barotseland. The government of Lwambi has it’s own Natamoyo and other Indunas

Chiefdoms: Barotseland is sub-divided into eleven (11) Chiefdoms each headed by a Chief. A Chief has a team of Indunas to assist him / her in governing the area. This is a tier of government. In each Chiefdom has an Induna as political, administrative and judicial head.

County Administrative Areas: In every Chiefdom there are County Administrative Areas referred as of Lilalo. The Silalo (singular) has an Induna who is its political, administrative and judicial head.

Villages: A Silalo has a number of villages (Minzi). Munzi (singular) has an Induna who is its political, administrative and judicial head.

Kuta: Each level of government has a Kuta. The main responsibility of the Kuta is to carried out political, administrative and judicial functions of each tier of government.

Land Tenure

Land in Zambia is of two categories: customary and state land. There are two land tenure systems; freehold which has unlimited duration and leasehold which is limited by number of years. The land tenure for customary land is freehold while for state land is leasehold which for 99 years.

Under leasehold, land is owned by the state while individuals merely rent or hold it as tenants. Secondly, the leaseholder is required by law to pay ground rent to the state for renting the soil or land. The leaseholder cannot sell, transfer or assign any land, before obtaining consent of the President. This is because all the land in Zambia in entrusted to the President on behalf of all Zambia.

In the case of freehold (customary land), individuals own the land and their heirs can inherit it. However they cannot sell, transfer or assign any land without the consent of the Kuta. This because all customary land is held in-trust by the Litunga.

Barotse (Customary) Land Management Systems

All the land and natural resources in Barotseland are entrusted to the Litunga. Land in Barotseland is acquired and given through the Litunga. It is for this reason that the Litunga is referred to as the owner of land and cattle (Minya-Mupu-Na-Ngombe ) and the King of the earth (Mbumu-Wa-litunga ). This does not mean that he is entitled to do as he pleases with every piece of land within the boundaries of Bulozi. He is the custodian of the customary land. His rights are clearly defined. Traditionally, Lozi people say that the King is the owner of Bulozi and its trees and his servants and the cattle, the Prime Minister is owner of the Lozi people (Mbumu to minyo Uluyi ni itondo na bika ni ngombe, Ngambela to minyo Aluyi). This saying emphasises the importance of the Litunga as the giver of material wealth and the importance of the Ngambela as the leader of the nation. Once the Litunga gives, the recipient has definite protected rights in what he has received.

Land Ownership Types

There are five basic land ownership types in Barotseland.

Mubu-Wa-Ngweshi: This land belongs to the Litunga, and is inherited by each Litunga who ascends to the Throne. It is scattered all over Barotseland. Entrusted to the Litunga and /or Litunga’s representative (District Chiefs) for the people of Barotseland, it is from this land Litunga and Chiefs can give land to people who ask for land for it for homesites,, agriculture, or other kinds of development. The land and natural resources found on this land are managed on behalf of the Litunga by Indunas at various levels.

Mubu-Wa-Luu: District Chiefs and certain Indunas and members of the Royal Family have access to land, which is attached to their positions within the Barotse Royal Establishment. The family members cannot inherit this land, when the current holder of the position dies, resigns or dismissed, the ownership is transferred to successor. The present owner is responsible for the management of this type of land and its natural resources.

Mubu-Wa-Bana-Ba-Malena: Members of the Royal Family hold this land in trust. This is hereditary - passing from generation to generation in the same family membership. However, should be a situation such that there is no one to inherit the lands to the trusteeship reverts to the Litunga. Members of the Royal Family and their Indunas are responsible for the management of this and its natural resources.

Mubu Wa Lusika: This land belongs to ordinary citizenry of Barotseland. This is hereditary - passing from generation to generation in the same family membership. This type of title is also referred to as Katongo-Ka-Shangwe. Family concerned responsible for the management of this and its natural resources

Mulalambuwa: This is land that is far from any human settlement. No village or person has claim over it. Any person can acquire this land by following prescribed procedures through the Silalo Induna. The land and natural resources found on this is managed on behalf of the Litunga by Indunas at various levels.

Adjudication of Land Disputes

The main business of the Kuta consists mainly in the hearing and settlement of cases. Many of these cases concern land disputes. Identifying and agreeing on boundaries of the disputed land is a major part of the proceedings of the Kuta. Physical features such as lakes and foot paths mark boundaries.

waht is the legal status of these certificates locally and at the national level in Zambia. I would like to know if the certificates can be used as collateral and or defend ones's land rights in a curt of law in Zambia

My work on customary land acess by women and others work showed that the overlapping of statutory and customary  land righst is not necessarily an bad thing as it increases the choices and options of forums available for people (especially women ) to negotiate and defemd their land rights. It is also possible for the statutory and customary land rights to complement each other in ways that reinforce and strengthen land claims

Dear all, 

As i was reviewing the draft policy that awaits validation, it came to my attention that most of our concerns on customary land have been touched upon, my main observation was that our constitution which is the supreme law has provided for lands commission which will be in charge of issuance of title deeds. Meaning, even though the policy and the constitution recognize customary land, the role of chiefs has been outlined and issueing title deeds is not one if them.

Documenting customary land has been provided for in the draft and there are also suggestions to review other policies such as the Survey Act of 1960 and also realign the use and management of common land with the forest and wildlife policies of 2015.

Other points i would like to raise are on the Citizen Economic Empowerement Act and the Land Development Fund which does not seem to touch people in customary lands. These funds could be used to assist traditional leaders and local authorities to upgrade their documentation processes. Accordingly, the last map or perharps first and last map which shows chiefdoms and state land was prepared in 1957 and has not been updated.

If traditional certificates are to be recognized, chiefs must play a role in all land use planning and administation processes especialy that the draft is calling for provisions for reversing state land back into customary land if it has not been utilized.

Thank you for this. In the interest of widening the debate I would like to invite us to appreciate that customs and theand customary authorities that govern customary land are diverse in Zambia(e.g the existance of patrilineal and matrilineal communities). If we take into account the diversity , we are better able to appreciate the complexity of the situation. I hope to hear from practitioners working in these areas

Dear Garikae

Government's relationship with traditional land is much more complicated and dynamic. I refer to a paper I co -authored in 2012 to illustrate my pointhttp://www.plaas.org.za/news/hallparadza-governance-landgrabs2  . The point is to invite the platform to diversify their views on the position and role of the State in Zambia in relationship to customary lands.

With respect to ongoing innovations in the documentation of customary land, there has been very little structured engagement by the cadastral survey community. What I present therefore are my own personal views and do not necessarily represent the views of the Zambian survey community.

The current system of registering land in Zambia is based on a fixed boundary system. This is a system introduced by the colonial government and operated by a profession of cadastral surveyors trained in the measurement of land using elaborate methods and precise equipment. This system provides for the registration of exclusive rights based on survey diagrams and beacon monuments. In my opinion, the question we need to address is not whether the country should use general boundaries or fixed boundaries but rather, with what rigour should our boundaries be mapped and is it necessary to monument the boundary corners? I would argue that the TGCC pilot and others have all the characteristics of a fixed boundary approach except they may/or may not have used precise measurement techniques in coordinating the boundary points and there was no construction of concrete beacons.

My personal view is that the traditional rigorous fixed and monumented approach might not be cost effective in our National Land Titling Programme. Current land survey regulations allow for the conditional use of photogrammetry methods to perform cadastral surveys. I would therefore suggest that we use the recently acquired (from the national mapping programme)10cm high resolution rectified ortho-photos (captured for all our cities including the Copperbelt and all provincial capitals) to produce individual property diagrams for registration purposes.

Equally we should also consider using 50cm resolution satellite imagery acquired for all built up areas (approx. 25 sq km) of each district for registration purposes. As for the rest of the country (including communal boundaries) the recently completed TGCC pilot in Eastern Province and other similar approaches offer possible techniques to the mapping of household and communal boundaries.

Should the government consider issuing and registering title deeds on the basis of records generated by community surveyors in various customary land documentation pilots there are issues of standards, training and regulation to be addressed. According to the Land Survey Act and the Land and Deeds Registry Act, the only persons allowed to extract and certify property boundary data for registration purposes are licensed surveyors.

Hello Moses, GMAs are not part of state land, though many people in Zambia believe they are. Originally controlled hunting areas within customary area and under the control of what was then called the Native Authority, they were converted to 32 game management areas (GMAs) - still within customary area - in 1971 by statutory instrument. In 1993 they were declared under the Game Management Declaration Order by statutory instrument No.67 of 1993 as areas for the sustainable utilization of wildlife.[i] ZAWA simply used them as a rent basket from hunting-safaris and never paid what was agreed to the CRBs, let along the customary residents. And they provided game quotas having no bearing on the resource base. 

[i] Zambia Wildlife Act No. 12 (1998) GOVT. GAZETTE (Acts), at Part V.26.1. 


Dear Gaynor

I will share the document as soon as i figure out how to attach. Please advise if there is an easy way that i can share. Thank you

Dear all, 

I think some of the contributions already have touched on customary land documentation practicalities and laws, including,

1.  Whether the process of documentation is legally permitted, and what the status of any documentation might hold in the eyes of the government. 

2. How a process could be carried out in the field to document customary rights (household, chiefdom boundaries, and shared resources). The views of broader stakeholders (particularly the surveying community) on finding a balance between standards and the flexibility that is required to be practical, particularly when comparing rural customary holdings, and peri-urban or high density areas. 

3. Who should be carrying out the process of documenting customary rights. 

Some other specific questions have been raised that we can create specific chains around... For example,  should customary land be transferable? We will open a few themes and contributors can continue through replies, to help focus. We may also move some of the first week's discussions under these themes (given the limitations of this discussion format). 

What are the features or steps that should be part of the process of documenting customary rights? 

What are the technologies that should be used?

What standards should be applied and what are the views of professionals of these participatory approaches? 

What experiences do we have from Zambia and other countries? 

Yes, the documentation of customary right is a preserve of the traditional authorities. The fact that there is no legal framework that governs this registration, does not in itself negate from its registration. The Lands Act (section 7) recognises customary tenure, the Deeds and Registry Act(section 28) excludes grants of concession by chiefs from the purview of its mandate. Documentation of customary rights is well in the armbit of the law as it does not defy logical nor does is it repugnant and inimical to justice (Raymond Kaima et el 2017).Therefore, registration of customary rights is legal within the existing legal framework.

 

Debates are raging between stakeholders as to which institutions can be well mandated to document customary rights. To me, traditional leaders are well placed in this category as they are the custodians of the land held under their custom, further, they know the culture and the terrain compared to proposals of certain govt. Ministries to get this mandate. Indeed their capacity needs to be built, and it goes no further than that.

 

Low cost approaches should be encouraged because of the vastness of customary land and due to the limited man power in the Country. There are less than 40 registered land surveyors in a country of more than 14 million.

The Land Survey Act in its current state provided for the use of aerial photography for registration of properties. It however does not state exactly how the registration should be done including acceptable photography resolutions and scales. There is need therefore to relax the national standards particularly in customary areas to facilitate for the registration of these areas if the national titling programme the Ministry of lands has embarked on was to be successful. The use of conventional methods and current standards will take us more than 1000 years to register all the land in the country.

Fit for purpose technologies such as the use of aerial imagery to capture boundaries and not so high end GPS equipment could be used to capture boundary information together with all attributes related to the land. Accuracy standards as stipulated in the Land Survey Act and its regulations would have to be relaxed to allow for the use of less accurate. Tools such as Mobile Application to Secure Tenure (MAST) should be encouraged as they are not only open source but they can be taught to local communities easily. The Social Tenure Domain Model could be used as a tool as it is pro-poor.

 

Cost effectiveness is an important principle for a successful land administration system. For one to say that the technology is cost effective, the source codes should be easily accessible to the community and the land fraternity/land eco-system in Zambia. There is no need for instance of seeking a land expert to configure the software whenever need arises.
 

BBORDER DISPUTES AND THE AFRICAN UNION BORDER PROGRAMME

AHG/Res. 16(I)

BORDER DISPUTES AMONG AFRICAN STATES

The assembly of Heads of State and Government meeting in its First Ordinary Session in Cairo, UAR, from 17 to 21 July 1964, Considering that border problems constitute a grave and permanent factor of dissention; Conscious of the existence of extra-African manoeuvres aimed at dividing African States; Considering further that the borders of African States, on the day of their independence, constitute a tangible reality; Recalling the establishment in the course of the Second Ordinary Session of the Council of the Committee of Eleven charged with studying further measures for strengthening African Unity; Recognising the imperious necessity of settling, by peaceful means and within a strictly African framework, all disputes between African States; Recalling further that all Member States have pledged, under Article IV of the Charter of African Unity, to respect scrupulously all principles laid down in paragraph 3 of Article III of the Charter of the Organization of African Unity: 1. SOLEMNLY REAFFIRMS the strict respect by all Member States of the Organization for the principles laid down in paragraph 3 of Article III of the Charter of the Organization of African Unity; 2. SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

DECLARATION ON THE AFRICAN UNION BORDER PROGRAMME AND ITS IMPLEMENTATION MODALITIES AS ADOPTED BY THE CONFERENCE OF AFRICAN MINISTERS IN CHARGE OF BORDER ISSUES HELD IN ADDIS ABABA (ETHIOPIA), ON 7 JUNE 2007

HAVE AGREED AS FOLLOWS:

On the implementation principles of the AU Border Programme

5. We note that the implementation of the AU Border Programme will be effected at several levels – national, regional and continental, and that the responsibility of each of these levels should be determined on the basis of the principle of subsidiarity and respect of the sovereignty of States. a) Border delimitation and demarcation (i) The delimitation and demarcation of boundaries depend primarily on the sovereign decision of the States. They must take the necessary steps to facilitate the process of delimitation and demarcation of African borders, including maritime boundaries, where such an exercise has not yet taken place, by respecting, as much as possible, the time-limit set in the Solemn Declaration on the CSSDCA. We encourage the States to undertake and pursue bilateral negotiations on all problems relating to the delimitation and demarcation of their borders, including those pertaining to the rights of the affected populations, with a view to finding appropriate solutions to these problems. (ii) The Regional Economic Communities and the African Union should assist the States in mobilizing the necessary resources and expertise, including by facilitating exchange of experiences and promoting inexpensive border delimitation and demarcation practices. (iii) The Commission of the African Union should conduct a comprehensive inventory of the state of African boundaries and coordinate the efforts of the Regional Economic Communities, and launch a large-scale initiative aimed at sensitizing the international community on the need to mobilize the required resources and any other necessary support. On their part, the former colonial powers should submit all information in their possession regarding the delimitation and demarcation of African borders. b) Local cross-border cooperation (i) The local stakeholders should be the direct initiators of cross-border cooperation under the auspices of the States. (ii) The States should, with the assistance of the African Union, facilitate local initiatives and mandate the Regional Economic Communities to implement regional support programmes for cross-border cooperation. (iii) The Regional Economic Communities should provide the legal framework necessary for the formalization of cross-border cooperation and establish regional funds for financing such cooperation. (iv) The Commission of the African Union should take the necessary steps to ensure that cross-border cooperation is included in the major international initiatives launched in favour of the continent, as well as play a coordination role and facilitate the exchange of information and good practices between the Regional Economic Communities. c) Capacity building The African Union Border Programme should, on the basis of close coordination between the different levels concerned, carry out an inventory of African institutions that offer training in this domain, explore avenues for collaboration with relevant training centres outside Africa, and, on the basis of the above, design a capacity building programme in the area of border management.

“Cost effectiveness is an important principle for a successful land administration system. For one to say that the technology is cost effective, the source codes should be easily accessible to the community and the land fraternity/land eco-system in Zambia. There is no need for instance of seeking a land expert to configure the software whenever need arises.”

In 1996 I published an article (Mutale, E. ‘A Biblical View of Land Policy’ South African Journal of Surveying and Mapping’, Vol. 23, Part 6, Dec. 1996, pp325-332). In it I present eight land management principles. Although derived from the Bible, I believe these principles are relevant to this discussion and can find application in our modern society. After all, African culture is closer to the biblical Jewish way of life than to Western culture. The eight principles are appropriately summarised in the acronym  - ECCLESIA.

Equitable, Effective and Efficient

Fairness and justice should be characteristics of the land allocation system. Land management must be capable of producing desired results at a minimum cost to the public and the environment.

Community Origins and interest

A land management system must reflect the value systems and interests of the people it serves and not be an alien imposition.

Cheapness and Completeness

Original grants of land should be cheap enough to be afforded by all. Failure to which means-tested selective subsidies should be considered to enale the poorest of the poor in society to access land. 

Leasehold

There is a loose coincidence of thought on the ownership of land between the biblical view and the African view. They both acknowledge that absolute ownership of the land does not vest in the individual. To the one it vests in God, to the other, in the community. The leasehold principle complements the equity principle by providing potential opportunities for redistribution.

Exclusive use-rights

The principle of private use-rights is widely practiced in Zambia, more so in urban areas. As for rural areas families and individuals tend to have exclusive use-rights to their fields.

Security of Tenure

A clear definition of boundaries, state guarantees, a system of registration, and an independent and accessible legal system are essential for securing use-rights

Intrinsic value of land

Whilst accepting the classical economic concept of the use and exchange value of the land, land management must be extended to embrace the intrinsic value of land. Land should not be valued only in relation to its use and exchange value, but also for its own sake.

Accessibility to all

Land should be made available to all. Mechanisms need to be worked out on who qualifies, where they qualify, when they qualify and how they should be enabled to access the land. Ensure that people do not lose their only land through being forcefully dispossessed or distress sales, or if they do, they are enabled to redeem their land.

NGOs role in custoamry land document is to provide technical support to both traditional leaders and governement who have the mandate to do so. For example NGOs such as Land Alliances have staff that can support the process be it being done by governement or chiefs, necessary infrastcture required for the process etc. what is more welcome is working together chiefs, governement and NGOs as this work is a common calls and mamoth task that would take a thousand years if rules are not relaxed and different players do their on things

The sale, transfer, renting of customary land is already happening as many of us will acknowledge. These transactions are going on between individuals but also between chiefs/headmen and individuals. We need a system that regulates such transactions and captures some of the benefits from these transactions into the customary land development fund for the  greater good of the community. Recognising and regulating for such transactions will help us begin to address the paradox of ‘a people rich in land yet poor’ by unlocking the full potential of customary land. I also concur with the view that in cases of those huge failed private or government projects, where customary land had been converted to state land, there should be the option for the traditional authorities to apply for a reversion of such land back to customary land.

We need to differentiate between the documentation that is being undertaken in various chiefdoms and the registration of title as governed by statutes such as the Lands and Deeds Registry and Land Survey Acts. There is no law which prevents any chiefdom from documenting the land rights of their subjects as part of their land administration structure. But as the law currently stands, such documentation cannot be equated to land registration which is regulated by the two Acts above. Of course we can amend the laws to reflect what would be in our developmental interests as a nation especially with respect to strengthening customary land tenure and unlocking its economic potential. The National Land Titling Programme and the ongoing trials in the documentation of traditional land have sharpened community understanding of the processes leading to, objectives and benefits of secure land tenure including rights and obligations. There is a momentum and relationships which have been developed during these documentation exercises on which we can ride as we seek to build on the strengths of our customary land tenure administration. As for actors, we need to acknowledge that this is a technical and political process. We will need the active engagement of a wide array of actors e.g. Traditional Authorities, Government, CSOs, Private Land Surveyors, Lawyers etc. None of the foregoing groups of people have the knowledge, skills  and capacity to undertake this exercise single handedly. It has to be a collaborative effort.

Dear Gaynor, 

There are multiple ways to do this either by allowing for joint claims or registration of persons of interest or allowing claims to be made on the behalf of a group (if there are multiple overlapping claims on the same land for the same use). Alternatively, if land is used seasonally for grazing or has parts that are accessible to the broader community, in Chipata and Petauke the groups are documneting "shared resources." The deeper point though is that customary norms need to be defined or clarified as other norms emerge (for example are you allow to fence your property and keep out grazing cattle or people from following a footpath). In parts of Europe there is a "right to roam" and the UK has historically had easements which mean that you cannot keep people from walking through your property where there has been a historical footpath. These are some example where exclusive rights don't necessarily apply. In other parts of the US, you have to post "No Tresspassing" to make it known that you do not want people on "your" property.  

Overlapping rights are a really important part of these tenure systems that leasehold titles often don't consider very deeply. 

I agree with Tim and Nsama, I have not seen much discussion about reversion of leaseholds back to customary land, even though it is one of the main complaints by traditional leaders on the current policy framework. The current patchwork of conversion (in my opinion) represents a big management challenge, as having non-contiguous parcels of state and customary land makes it difficult to plan and resolve issues that emerge.  

Dear Colleagues, 

As we enter the last week of the Land Portal Dialogue, we reserved questions related to impacts and opportunities for scaling up land documentation processes. 

We would ask contributors to reflect on: 

1. Achievements and areas for improvement in land documentation; 

2. Evidence of positive or negative impacts of land documentation (including individual stories); 

3. Ideas on how to increase transparency and sharing of data between customary and state authorities; 

4. How land documentation can be used for land-use planning and service delivery; 

5. How to build on current experiences for: a) sustainability in customary areas; and for informing the National Land Titling Program. 

Data sharing has been one of the major challenges in Zambia. To avert this the Ministry of lands through the office of the surveyor general is establishing the  National Spatial Data Infrastructure with a geoportal that will allow different stakeholder access and share fundamental spatial data. If data received from civil society and NGOs that document land rights in customary areas, transparency in land administration could be enhanced and this can result into the reduction of displacements of customary land inhabitants of occupants as the data could be used during the screening process of land to be offered to investors or otherwise in customary areas.

 

With government’s intention to do systematic registration, the methods such as MAST will have to be adopted. Linking of the local registers e.g. as developed through STDM with the national land registration system would enhance the national titling process. For this to happen the regulatory framework that governs land registration will need to be worked on to make it more amenable to systematic land registration systems. A fit-for-purpose approach anchored on three principles i.e.

1)  Relaxation of the technical standards in data collection using appropriate tools such as aerial images and mobile apps for field surveys

2)  Developing a flexible legal framework that will allow for a continuum of land rights to be documented.

3)  Developing an institutional framework which will include all partners(government, local communities, NGOs, CSOs and traditional authorities) working together to develop land governance structures that minimize bureaucracy.

Mobile tools are best suited for transferring information over limitless distances in an extremely cost-effective way. Mobile tools that have already been created for the health sector have been created with simplicity in mind, meaning users with less technical experience can transfer and use information easily. In both the health sector and the land sector, the ultimate goal is to get timely, accurate information into the hands of decision-makers. In the health sector, this could be a rural health facility reporting on the patients they are treating, and for which ailments. A patient ID is created, and every time they visit a health facility their information is easily tracked, allowing for better patient care and health centre preparation.

The problems facing land work are much the same. Following family changes or changes in ownership, a landowner in a village may request a parcel demarcation. At this point, much like a patient ID, a parcel ID can be created and used to track any future changes made on that piece of land. This allows for greater transparency, predictability, and can help establish proof of ownership.

Dear all,

Friday 2nd February is World Wetlands Day and Zambia has 8 Wetlands of International importance called Ramsar Sites. As we deliberate on land in the final week i hope we also consider documenting these very important land marks. Thank you all

Thank you Nsama and Moses,

Does anyone have insights on the best ways to integrate the household land documentation work, with the mapping of shared resources and rural land-use planning?

First, do you think that rural land-use planning can/will work in the Zambian context (it is certainly forseen in the URP Act, but is it practical).

Secondly, is anyone seeing how household and resource mapping in the Chipata, Petauke, Chamuka, or other rural documentation efforts, are leading to changes in resource management?

Dear Matt, Collecting Information on Shared Resources: During village meetings, communities undertake standard participatory rural appraisal mapping approach where the village draw their boundaries and resources. A new grid is subsequently established to nest within Zambia’s 1:50,000 topographic map atlas, which, when printed with high resolution imagery including from Quickbird, WorldView-2, and GeoEye through a Digital Globe license, allowed for identification of resource types on the ground by local communities. Bringing these resource maps to communities allow community members to transcribe their participatory maps onto imagery printed on A1 map sheets. The collection of spatial data is done based on the needs of the facilitator, including, through drawing on a physical map, collecting boundary points through a walk, drawing polygons on a tablet screen, or for specific locations, collection of point data. The following land uses are catalogued: • Agriculture, • Grazing areas/wetland agriculture, • Graveyard, • Forest/Bush, • Hills, which frequently may also include forest/bush or mining or wildlife, • Settlements, • Wildlife, or • Mining. Additionally options for numerous types of points are also collected. Each resource identified by the community is subsequently labelled and the local tenure and management regime associated with it is collected. Each resource is classified as: • private, • community managed, • communally managed by multiple villages, • communally managed at an area or chiefdom level, • open access, or • government managed. If resources were communally managed, the villages that engaged in the management are identified, allowing the team to develop maps that effectively demonstrate the area of customary interest of each community. The availability of these tenure regimes may form a basis for documenting and securing both community rights, as well as areas reserved for individualized/family/private rights in the future. Following this process, household mapping is done so you have a layer of shared resources and household parcels on a map. This information is important for land use planning at chiefdom level even at district and government level. This is a practical step having been tried in petauke Zambia by the Land Alliance

Absolutely not.

https://landportal.org/comment/2294#comment-2294

Read the above link which shows the great success being achieved by the issue of Certificates for the Rights of Customary Occupancy. However, the government - as in Zambia - takes what it wants. https://termitemoundview.blogspot.ca/2018/01/fear-and-silence-in-loliondo.html

Methodological advances in computing, positioning and mapping techniques have lowered the cost of large scale property documentation/registration considerable. This has been demonstrated in the just completed TGCC project and other pilot projects within Zambia. Albeit, there are other challenges of a political, technical, institutional/legal nature which would impact on the roll out of documentation process.

Of a political nature, the programme still needs to be ‘sold’ to the other two-thirds of Zambia’s approximate 300 chiefdoms where there isn’t some form of documentation taking place. This could be done with the help of traditional authorities in ‘compliant’ chiefdoms explaining the benefits of documentation to the other chiefs. The other political challenge relates to data sharing, unless the data are made accessible on a central repository such as the NSDI which holds other spatial and attribute data, the aggregate potential of these datasets may not be fully realized. There would be need to demonstrate the wider benefits of data sharing and facilitate for the joint development of data sharing protocols involving all stakeholders (those providing and those collecting the data).

Of a technical nature,it has long been observed that our traditional approach of stringent  cadastral mapping for land titling purposes has struggled to produce the desired results – hence the perpetual survey backlog. Using this approach we have managed to register a meager 200,000 titles. This represents a paltry 1% of the potential 15million titles nation wide. Admittedly survey productivity has gone up with the widespread use on GNSS technology. However, there is still need to revise our cadastral standards to take account of the task at hand, available technologies and relative value of urban and rural land.

Of an institutional and legal nature, our current land administration framework was designed at a time of slow population growth and mainly to serve a small white settler community. Social, economic and demographic changes which have occurred particularly in the last 20 or so years require that we streamline our land administration framework in ways which will enable it respond to the national development goal of systematic land registration/documentation. Current land administration institutions exist mainly for the benefit of state land, but even these lack the requisite resources (technical and human) to work effectively. A national registration/documentation process will require the strengthening of existing institutions (where weak ones exist) and the creation of new ones where no institutions exist. This is perhaps the most pressing challenge to a large scale registration/documentation process. In a decentralized system of government, we are talking of several institutional layers of land governance – village, Chiefdom, district, provincial and national. Similarly, the legal framework will need to be reviewed to reflect new realities. The TGCC programmehas demonstrated that potential exists to work with local people and build skills at village and chiefdom level. It remains to be seen if this can translate into independent institutions able to sustain themselves long after the first registration/documentation is done.

There is no doubt that the Rwandan experience of a successful national land titling programme has inspired other countries in the region (Ethiopia, Tanzania, Malawi, Zambia etc) to also consider mass titling programmes. Technological advances have made first time systematic mass registration a reality. The challenge however is how to maintain the land records system by the continual updating of data within the system occasioned by changes in land holdings.

A word of caution – what worked in Rwanda may not necessarily work in Zambia. The practice of democratic principles are very different within the two countries. My gut instinct is that for mass documentation to succeed and be sustained in Zambia, the people must want it. It should be sensitive to the culture and needs of the community. It cannot be an imposition from above or from outside it must be demand driven. From my reading of the TGCC project, the documentation of customary land rights in the two chiefdoms in Eastern province appears to have taken account of these sensitivities and seems to have been well received.

There is a danger that we all get carried away with the technological advances in data capture, storage and manipulation at the expense of what is really important for the people for whom the data documentation system is being developed. Sustaining the system will depend on the level of knowledge and skills within the community. Outside agencies/experts need to work with the local communities to document the land. Such an approach has the twin benefits of keeping the costs down but also empowers the local people with knowledge and skills to be able to maintain the system.

A simple, flexible, freely accessible and cheap to maintain locally based secure system with provision to link to other systems has a greater chance of being managed locally. It should then be possible at a later date to link this to the district, provincial and national systems. This local system could be designed to use open source (rather than vendor owned) software which runs on a tablet or mobile phone thus greatly cutting down on setup and maintenance costs.

Simple, Cheap and Local are key factors in building a sustainable large scale customary land documentation system.

Possible uses of large scale land documentation include rapid assessment of the structure and size of land ownership. Overlaid with remotely sensed imagery, experts are able to determine types of land use, crop yields, planning for disaster prevention and mitigation.

At present, rural housing is characterized by insufficient infrastructure support such as water and sanitation, energy, health, education facilities and other economic and social amenities. This is mainly due to the dispersed settlement patterns prevalent in many rural areas, making service provision cost ineffective. The situation is not helped by the lack of complete and up to date information on settlement patterns and population levels. With land documentation, service providers have the necessary data to plan on how these areas can be supplied with services.

Interesting indeed. Probably one key point to consider in this sense is how to deal with the issue of sensitivity of data collected so as not to compromise the interests of the 'owners', particularly if such information is gathered without sufficient knowledge by those volunteering it. If not well handled, this could act as a mover or disincentive to progress in land documentation. therefore investing in awareness/knowledge sharing is key.