Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

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procedures between matrilineal and patrilineal groups (pp. 5-14). The paper also discusses in some detail the various land acts, registration and settlement programs in Malawi since independence (pp. 17-19). Riddell directly ad-dresses the issues of fragmentation versus consolidation and customary versus modern forms of land tenure and argues that customary tenure (whether a matri-

lineal or a patrilineal system), in and of itself, is not a detriment to pro- ductivity and growth. He notes that land held customarily has advantages over "modern" forms of tenure. Customary land tenure systems are governed by rules that are clear and comprehensible to the members of that community and perhaps are more appropriate for the farmers of Malawi. Further, on the issue of frag- mentation, he argues that there are advantages to having land spread between different ecological and social areas. This "spread" in many instances provides an insurance policy against environmental and social disruption.

Another issue that Riddell focuses on concerns the lack of security under customary tenure. President Banda has argued that land without title, and thus without individual control, lacks security. This lack of security seriously affects the farmer's opportunity to secure financial assistance. Consequently investment is lacking and productivity lags. Riddell states, however, that there is no evidence that the customary systems lack security of tenure, and he questions the necessity of registration of land, either as freehold or leasehold. The problems of agricultural production, he believes, must stem from other sources. (The paper also has an extensive annotated bibliography.)

In contrast to Riddell, other authors have taken the position that a more "modern" system of land tenure should be adopted--though they do not necessarily regard the existing legislation as the ideal solution. This is the view taken by Brietzke in the following article:

MW4 Brietzke, Paul H. "Rural Development and Modification of Malawi's Land Tenure System." Rural Africana, no. 20 (Spring 1973), pp. 53-68.

In this paper the author reviews the history of Malawi's land tenure pol- icies and finds that these policies, especially those "regulating" customary tenure, were in need of modification by 1960. Brietzke discusses the strengths and weaknesses of customary tenure, noting particularly the ways in which it inhibits agricultural growth (pp. 53-59). He writes that individualization of tenure will increase credit-worthiness and thus lead to greater investment in production (p. 64).

The strength of this paper is the detailed, legal assessment of the stat- utes passed in 1967 (pp. 60-64). In his review of the statutes, Brietzke finds that they are poorly constructed and disadvantageous to many Malawians. There has not been a concerted effort to link the legislation to agricultural policies with regard to development projects, marketing, agricultural credit, and taxes.

inappropriate to the needs of :Malawi. He states in the conclusion:

The statutes are too negative in character and contain too few

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development--acquisition of individualism, new skills and goals, weakening of traditional sanctions, and commercialization--will be retarded [p. 65].

The debate over "customary" and "modern" forms of tenure has not been limited to written discussions of abstract advantages and dis- advantages, but remains a vital issue in the planning and implemen- tation of development projects. Under the provisions of the Land Amendment Act, policy has been to grant leasehold titles to individ- uals and corporations who wish to,engage in commercial agricultural production. Most of these leasehold estates are located in the Central Region, a less densely populated area than the Southern Region and one better suited for tobacco cultivation. Indeed, most lease-hold applications are motivated by a desire to grow barley or flue-cured tobacco, crops whose cultivation is limited to the private (as opposed to the customary) sector. Production of tobacco for export has been very profitable, and the numbers of applications for lease-holds have increased every year. Although the estates have been successful insofar as production of a crop which has earned valuable foreign exchange is concerned, they have achieved this at the expense of the customary sector, which has lost between 400,000 and 500,000 hectares to leasehold estates. Moreover, much of the land on estates is left uncultivated, as growers find it not worth their while to produce other crops on the land, and in the past several years there has been increasing pressure from international donors on the Government of Malawi to suspend these allocations Unfortunately, no studies have been conducted of land use and agricultural productivity on estate lands.

A good deal more attention has been devoted to a project for the freehold registration of customary land held by smallholders in the area around Lilongwe, the capital. Debate has centered not only on the advantages of "modern" versus "customary" forms of tenure but also on the specific ways in which this particular project, the Lilongwe Rural Development Project (also referred to as the Lilongwe Land Development Program), was carried out. One of the most useful discussions of the project and its establishment is the following:

MW5 Mkandawire, R. Mulomboji. "Customary Land, the State and Agrarian Change in Malawi: The Case of the Chewa Peasantry in the Lilongwe Rural Development Project." Journal of Contemporary African Studies 3 (1983-84): 109128.

Mkandawire focuses on the consequences and long-term implications of reg- istration and consolidation practices among the Chewa peasantry in the Lilongwe Rural Development Project (LRDP). The author questions whether the "radical" alteration of customary tenure through registration, consolidation and provi-

sion of title to land will produce greater security, investment, and consequently greater agricultural productivity. He draws on data and case studies from the Chewa group in the LRDP.

Mkandawire argues that the Chewa were using land effectively prior to the passage of the 1967 land laws. The debate, of course, arises over the definition of the term "effective." This is an issue not easily resolved, even when

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extensive data are available. However, like Riddell, Mkandawire writes that customary tenure does not inhibit production. Indeed he argues that the pro-gram at LRDP has given rise to increased conflict among the Chewa and between the peasants and government officials. Further, the benefits of registration are not likely to be realized by many of the peasants, and those that do benefit will usually be the larger and more wealthy landowners. The author speculates that the registration program may contribute to landlessness. He presents survey data that indicate many farmers are not in favor of registration and, in fact, resent the registration program. In addition, he found that 46 percent of the 117 farmers interviewed did not know why land was being consolidated and registered.

Mkandawire notes a few examples of increased conflict over land among peasants. Specifically he notes that the consolidation has given rise to more boundary disputes. He concludes that the laws are inappropriate. Communities in which land was held under customary tenure were already experiencing changes relating to tenure prior to passage of these laws. In other words, customary tenure is evolutionary and was changing to meet the needs of new socioeconomic conditions in Malawi. He notes that there was a movement toward greater control of land by the household, rather than by the larger, more abstract community.

This paper is well argued, but it is impossible to tell from the tables who was included in the surveys. The author does not explain how those people interviewed were selected. Without greater specification on the methods used in data collection, the results are problematic.

Similar questions about the implementation of the Lilongwe Land Development Program (as well as reservations about evaluation of the project) are raised in:

MW6 Phipps, Brian. "Evaluating Development Schemes: Problems and Implications. A Malawi Case Study." Development and Change 7 (1976): 469-484.

Phipps' article is a general discussion of the evaluation of development projects using the particular example of the Lilongwe Land Development Program. Phipps expresses reservations about the project as a whole and also about the focus of any evaluation of it. One of the main purposes of the Lilongwe project is to increase agricultural productivity among participating farmers and provide exportable surpluses for the Malawian economy, and Phipps questions whether this is an appropriate goal. Assessment of the success or failure of the project will obviously be carried out with this goal (and others) in mind and therefore be subject to the same criticisms as the project itself.

Phipps is writing at an early stage of the project and thus the concerns he raises are ones he believes may occur rather than results that he or others have observed. The project is designed to cover an area of 1.15 million acres in central Malawi, with expenditures of approximately E6.3 million over a twentyyear period, and will involve, among other things, the adjudication of land rights of between 190,00u and 250,000 people over this period, an average of about 18,000 a year. It appears unlikely, however, that this is a realistic goal--in the two years 1971 and 1972, only 180 certificates of registration were issued. Phipps is also concerned that the new system of land tenure may create more problems than it solves. Although an early report as stated that

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there have been few disputes over land so far, Phipps questions whether the lack of formal disagreements can be taken to mean that all the participants are in agreement with the new arrangements. Moreover, he believes that indi- vidualization of title may result in a sharp division in rural society between the landed and the landless. He fears that the long-held belief that "there is no surer way of depriving a peasant of his land than to give him title to it" [first expressed in the East Africa Royal Commission Report (EA1) in 1955 and quoted here, p. 479] may be validated in the not-too-distant future. And finally and perhaps most importantly, Phipps writes that the Lilongwe project has not been as carefully planned as necessary. Specifically, too little thought has

The most detailed ciscussion and analysis of the implementation of the Customary Land (Development) Act in the Lilongwe Rural Development Project are found in the following article:

MW7 Ng'ong'ola, Clement. "The Design and Implementation of Customary Land Reforms in Central Malawi." Journal of

African Law 26 (1982) : 115-132.

Ng'ong'ola, a lawyer by training, is largely concerned to compare the design of the Customary Land (Development) Act (CLDA) and its implementation, setting the discussion within the context of the debate on modern versus customary land tenure arrangements. Pages 117-20 provide an excellent, detailed outline of the provisions of the act while a following section, entitled "Im-

plementation of the CLDA in Lilongwe, Central Malawi," discusses the problems of implementation of the act in the project area.

The Lilongwe Development Project area in Malawi is the only development project in which the CLDA has been applied. (All other project areas continue under customary tenure provisions.) Ng'ong'ola attributes this special status to the area's high population density, its considerable agricultural potential, and the large sums of money committed to the project by international donors, who, the author reasons, very likely insisted on the introduction of individual title. Application of the law, however, has diverged from the course laid out in its provisions. One of the problems encountered in the early stages was improper staff selection for the allocation teams.* Ng'ong'ola writes that the early teams, which included expatriates, were without proper legal training or knowledge of the local customs and languages. Additional problems arose from a significant lag time (three to four years) between demarcation of the land units and registration. This lag left land rights in limbo for too long a period of time (p. 112). Another problem was that demarcation procedures

* The Customary Land (Development) Act provides for the allocation of land rather than adjudication, emphasizing that once an area is declared a develop- ment area and plans are drawn up for its transformation, land may be redistrib- uted. In actual implementation, however, there has been little re-allocation of holdings.

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were largely male-dominated, while customary land inheritance patterns among the Chewa (who inhabit the Lilongwe region) are matrilineal. And finally, be-cause local people did not automatically come forward to secure their rights to land as had been envisioned, the allocation process required the participation of customary authorities, which had not been provided for under the CLDA. This unforeseen need to rely on customary authorities raised a number of questions with regard to conflict of interest.

One of the most important differences between design and implementation of the act stemmed from the stipulation that land was to be granted on an individual basis. Local development committees voiced objections to the notion of individual ownership of land, arguing that local society was not yet ready

for individual rights (as evidenced by the fact that land dealings were rela- tively infrequent) and that there was no guarantee that individual title would prevent excessive subdivision or fragmentation of holdings. Granting title to family units, the committees suggested, would result in better exploitation of the land and greater cooperation of family members who would otherwise be without rights to land. Consequently, the program was altered so that land titles were granted to family units, a change that was not without many complications and difficulties. As Ng'ong'ola points out, the CLDA was not designed for a gradualist approach (such as granting titles to families), but rather for the immediate and final stage of individual title. It would have been better, he believes, to have deferred application of the act altogether. In addition, the issue of family title was further clouded with the idiosyncratic way in which some family units were constituted--in a number of cases, members included individuals not related by either blood or marital ties. Nor did the record of who had ownership rights to a given piece of land always coincide with cultivation rights.

The process of demarcation and allocation has given rise to disputes in a number of cases. Some are over boundaries, which as a rule did not conform to earlier divisions; in these cases the local development committees have tended to rule against re-demarcation. Other disputes have arisen over ownership and have often been resolved by the creation of separate family units. But given the amount of change in the land tenure system introduced in Lilongwe, the numbers of disputes are surprisingly small and Ng'ong'ola concludes that land allocation was carried out in a "relatively bias-free" manner (p. 130).

The CLDA has obviously been applied in Lilongwe in a fashion very different from what was intended when the law was enacted, and it is not yet clear what the implications will be for agricultural development. As Ng'ong'ola notes, conversion to individual title would not, in and of itself, guarantee increased production, and before the law is applied to other development projects, he recommends that the CLDA be amended to legitimize the participation

of customary authorities in the allocation process and that guidelines on how customary land rights are to be converted be drawn up as well.

In speculating about the effects of the unorthodox application of the CLDA in Lilongwe, Ng'ong'ola writes that neither the goal of individual title nor the

more reluctant to lend money against land held by family units than by individuals. And some of these family units may have to be re-organized and boundaries re-demarcated. Despite these problems, however, Ng'ong'ola concludes that the notion of family land is not without merit. Development of a land market (which he associates with individual title) is not necessarily desirable, and joint title will facilitate cooperation between family members.

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A second article by Ng'ong'ola is a subsequent look at the Lilongwe program, and it presents valuable evidence of how the Lilongwe Local Land Board has functioned since its creation and to what extent its actions remain consistent with the intent of the legislation.

MW8 Ng'ong°ola, Clement. "Land Reform and Land Dispute Res- olution in Malawi: The Work of the Lilongwe Local Land Board." Journal of Eastern African Research and Develop- ment 16 (1986): 105-121.

The Lilongwe Local Land Board has-.two principal roles: to supervise and consent to all land transactions and to resolve disputes. In both of these roles, however, it has functioned in somewhat different ways than had originally been intended.

In its obligation to supervise and consent to land transactions, it has lacked formal guidelines and has instead evolved a series of considerations it takes into account in approving (or disallowing) applications. Among the factors it considers are the area of the land transferred, the legal nature of the transaction (for example, sale, lease), the amount of land remaining to the family, the price, the racial identity of the transferree, the consent of a majority of family members, including women, and its own judgment as to whether or not the legal implications of the transaction itself are clearly understood by the family members. In its decisions, Ng'ong'ola sees several principles being applied: (1) Approval is most readily given for applications to extract profit

(for example, to use gravel for road construction). (z) Leases are more readily approved than outright sales. (3) The smaller the acreage being transferred, the more readily the Board gives its consent. In fact, the Board has been called upon relatively infrequently to give its approval to sales of land, and Ng'ong'ola emphasizes that this is not because such transactions are often carried on off-register but rather because they are rare. He attributes this failure of the local land market to develop--as had been envisioned by early planners--to the fact that in applying the law, allocation committees chose to ignore its provisions for individual title and to grant only family title. Family title discourages sales and has in fact "perpetuated traditional feelings among Board members and villagers that land must be preserved for the family and future generations" (p. 112), a notion that is underscored by heightened awareness of land shortage. Although Ng'ong'ola acknowledges that a rural bourgeoisie has emerged in recent years, he believes that its appearance must be attributed to other factors than the attempted conversion of customary land (ibid.).

With disputes the Board is confronted with even more ambiguity and uncertainty. The legislation does not explicitly state that it is to resolve disputes, and Ng'ong'ola questions whether it in fact has the legal authority to do so. Despite this lack of a clear mandate, however, it has been active in dispute resolution and in its proceedings has enunciated several principles that are not entirely consistent with the original objectives of modernizing the land tenure system. Disputes tend to fall into one of two categories, concerning eitner family members omitted from the group at the time of the original allocation or individuals who, though not strictly members of the kinship group, possessed use rights to part of the land allocated to the family. The Board has shown itself willing to make minor corrections in the record when family members have inadvertently been omitted though, strictly

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speaking, it does not possess the authority to do so. More at odds with both the spirit and the letter of the law are its judgments in disputes regarding family members with use rights to land. In these cases, it has upheld the "old style of cultivation," in effect nullifying the land demarcation and re-organization exercise (p. 115). Its willingness to adhere to principles of matrilineal succession similarly undercuts the initial intent of the development program as does its use of conciliation to achieve settlement of disputes at the expense of applying norms or sanctions.

direction of individualized tenure, it has failed to do so. A vigorous land market has not emerged. Nor have lending institutions shown themselves willing to make loans against registered holdings. The decision to introduce family titles almost exclusively undermined the original objectives of the land reform at an early date, and the rulings of the Lilongwe Local Land Board have only served to continue the process.

A more positive position on the reform is taken in the following paper:

MW9 Pervis, D.W. "An Economic Analysis of a Land Registration

Program in the Lilongwe Agricultural Development Division, Malawi, 1970-1983." Paper written for USAID/ Malawi, June 1984.

Based on research carried out in 198J, Pervis analyzes and assesses the impact of land registration in the Lilongwe Land Development Program. Pervis is an agricultural economist by training, and his analysis of data gathered from a

the land registration program and its implications. Registration has had little effect on farmers' investment patterns or on land use. Nor have farmers' attitudes toward registration changed markedly: one-third of the re-

spondees said registration had made no difference in their activities. Other responded that registration had made them more secure in their holdings or had given them greater control over land use.

Unfortunately, this is not an especially persuasive study. Pervis's arguments are weakened by severe methodological problems, including errors in statistical calculations and inconsistent or missing definitions of key terms

and variables. Even more damning is the fact that Pervis shows little understanding of how the customary tenure system functions in reality or any awareness of how the registration was actually carried out. He therefore is unable to appreciate how rarely headmen actually rescind land allocations in the customary system or to consider how the fact that virtually all the land in the LLDP was registered as family rather than individual land may or may not affect farmers' attitudes and practices.

Another paper, written as a political-economic evaluation of Malawi's rural development, argues that land reform was needed by

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the 1960s; however, the author finds that the policies adopted were colonial in nature and perpetuated inequalities which existed prior to independence.

MWlO Mwakasungura, A.K. "The Rural Economy of Malawi: A Critical Analysis." DERAP Publication, no. 197. Bergen: Chr. Michelsen Institute, 1986.

Mwakasungura is highly critical of Malawi's development projects, including the Lilongwe project, and questions whether these expensive undertakings will actually improve peasant agriculture-in the country. Such projects re-

quire vast sums of capital, and although production levels increase (perhaps inevitably), Mwakasungura doubts that they can be replicated elsewhere in the country because of their high cost. Moreover, he writes that many participants in the Lilongwe project were unable to meet production goals and repay loans because, with land now held only by individuals rather than families, farmers could no longer call upon labor from the extended family as they had in the past. In some cases, families simply abandoned their plots and moved out of the scheme (p. 47). Unfortunately, despite scathing criticism of the projects and of Malawi's agricultural policy in general, Mwakasungura's arguments are not entirely convincing; the paper is long on ideology and short on data.

Registration, and particularly survey, procedures are briefly discussed in:

MW11 Dale, P.F. Cadastral Surveys within the Commonwealth.

London: Her Majesty's Stationery Office, 1976.

Dale devotes most of his section on Malawi (pp. 240-44) to the survey procedures. A few comments relate to the social issues raised by survey and registration. He notes that the change from registration of deeds to title was first undertaken in and around Lilongwe. He discusses the procedures for registration, including survey, of private, customary or public land in the project area. He adds that registration of title, as operated under the Reg- istered Land Act, is to extend to all areas of the country and that some 40,000 titles held in the Deeds Registry will be converted to Title Registry and that at that time they will acquire state guarantee. According to Dale, the legislation for the registration of title is similar to that operated in Kenya. He states, "In both countries, the objective of cadastral surveys is seen to be to service the requirements of registration of titles or deeds and not in the broader concepts of ensuring a satisfactory land information system."

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MALI

The French colonial laws of 1932 and 1955-56 established a land registration system where customary users might "legitimize" their claims to land. In addition, residents and businessmen might apply for permits to "inhabit" and "occupy," respectively, parcels in urban areas. Although apparently,these laws remain in effect, it is not clear to what extent individuals have taken the appropriate steps to legalize their rights under written law. There is no written literature dealing with registration and its effects on agricultural production.