Introduction

One of the notions that scholars and practitioners of land law have to grapple
with is the land reforms. This essay will outline all the land reforms the
country has gone through from the time of the BSA Company up to 2015.
The essay will begin by providing the conceptual definition of the terms land,
land reform and land tenure as espoused by various legal authorities, then it
will proceed to show how land was administered during the BSA Company
right through to 2015. It will also show how each republic has contributed to
Zambias land tenure system and any major changes to land law. The essay
will conclude with an opinion on how the challenges confronting the
application of land reforms can be resolved.
Definitions
Blacks Law Dictionary1 defines land as any ground, soil, or earth
whatsoever: as meadows, pastures, woods, moors, water, marshes, furzes
and heath. The word land includes not only the soil, but everything attached
to it, whether attached by the course of nature, as trees, herbage and water
or by the hand of man, as buildings and fences. According to the Lands Act 2
in Section 2, it defines land as any interest in land whether the land is virgin,
bare, or has improvements, but does not include any mining right as defined
under the Mines and Minerals Act in any respect of Land. MacKenzie and
Phillips3 push the argument further by stating that land from a legal point of
view, means not only the ground but also the sub soil and all the structures
and objects like buildings, trees and minerals standing or lying beneath it.
In providing the conceptual definition of the notion of land reforms, Warriner
(1969)4 states that it is the redistribution of property or rights in land for the
benefit of the landless, tenants and farm labourers. Additionally Dorner
1

H. C. Black, J. Nolan and J. Nolan-Haley, Blacks Law Dictionary 6th edn. West Publishing Company
St Paul 1990.
2
Section 2 of the Lands Act, Chapter 184 of the Laws of Zambia.
3
J. MacKenzie and M. Phillips, Textbook on Land Law, OUP, Oxford, 2012.
4
D. Warriner, Land Reform in Principle and Practice, Oxford, Clarendon Press, 1969.

(1972)5 proffers that land reforms pertain to the remodeling of tenure rights
and the redistribution of land in directions consistent with political imperatives
underlying the reforms. In pushing the argument further, Tuma (2016), in the
Encyclopedia Britannica6 postulates that, land reforms are a purposeful
change in the way in which agricultural land is held or owned, the methods of
cultivation that are employed, or the relation of agriculture to the rest of the
economy. Reforms such as these may be proclaimed by a government, by
interested groups or by revolution.
Land tenure refers to the relationship, whether legally or customarily defined,
among people, as individuals or groups, with respect to land. It is an
institution with rules invented by societies to regulate behavior. Rule of tenure
define how property rights to land are to be allocated within societies. They
define how access is granted to rights to use, control, and transfer land, as
well as associated responsibilities and restraints. In simple terms, land tenure
systems determine who can use what resources for how long, and under
what circumstances (FAO, 2006).7 Dorner (1972)8 details the concept further
by stating that any land tenure system should embody those legal and
contractual or customary arrangements whereby people in farming gain
access to productive opportunities on the land. It constitutes the rules and
procedures governing the rights, duties and liberties and exposures of
individuals and groups in the use and control over the basic resources of
land and water. Furthermore, Grover (2006) 9 proffers that land tenure is the
set of rules that determine how land is used, possessed, leveraged, sold, or
disposed of within societies. These rules may be established by the state or
by custom, and rights may accrue to individuals, families, communities or
5

P. Dorner, Land Reform and Economic Development, Harmondsworth, England, Penguin

Limited, 1972.
6
E. H. Tuma, Land Reforms Agricultural Economics, Encyclopedia Britannica
http://www.britannica.com/topic/land-reform, (accessed 8 March, 2016).
7
FAO, Land Reform: Land Settlement and Co-operatives, Rural Development Division,
Nations, 2006.
8
P. Dorner, Land Reform and Economic Development, Harmondsworth, England, Penguin
Limited, 1972.
9
R. Grover, Land Tenure, Land Markets and Rural Development, 2003.

Books
2016,
United
Books

organisations. There are two tenure systems in Zambia, customary and

leasehold tenure. Customary tenure is an indigenous form of land holding
which is generally communal in character. Leasehold tenure is a system of
land holding usually held on land that is known as state land and also
regulated by statutes (Mvunga, 1982). 10
Land Reforms during the Colonial Era
In the year 1889, British South African Company (BSA Company) acquired a
Royal Charter, which is a certificate of Incorporation in England having a
Royal seal, which empowered it to acquire land on behalf of the British
Sovereign. This land was to be acquired by way of concessions and treaties
(Mvunga, 1980).11 As a result, between 1900 and 1911, Zambia was
administered by the BSA Company, a mineral exploration firm, on the basis
of Concessions signed between King Lewanika and the BSA Company.
During this time the country was divided into two, namely, North-Western
Rhodesia and North-Eastern Rhodesia. The company was entrusted with the
apportioning of land to natives for their occupation. To the white settlers, land
was given on freehold or leasehold and these were allowed to register such
holdings. The natives though, were not allowed to obtain a title for their
land.12 These Concessions were later recognized by the British monarchy
through a Charter of Incorporation with series of Orders in Council. Before
the arrival of the BSA Company, All land in the country belonged to the
natives. The system of law and practice that prevailed was based on
indigenous law and usage.13 The BSA Company ruled Northern Rhodesia
from 1890 to 1924. As a result, the earlier Orders were revoked in 1911 by
way of the Northern Rhodesia Order in Council and this led to the unity of the
country that came to be known as Northern Rhodesia. At this time, the BSA
Company continued to rule as before though. The 1911 Order in Council
10

P. M. Mvunga, Land Law and Policy in Zambia, Gweru; Mambo Press, 1982.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, Lusaka,
1980.
12
Royal Charter of Incorporation of the British South African Company, 29th October, 1889.
13
W. H. Langworthy, Zambia Before 1890: Aspects of Pre-Colonial History, Longman, London, 1972.
11

made it possible for land to be set aside for the natives use as tribes or tribal
groupings, but expressly provided that it should be lawful for any purpose to
alienate from the King and people of Barotse territory reserved from
prospecting (Mvunga, 1980).14 This was necessitated by the 1900 Lewanika
Concession in which King Lewanika made sure that a clause was included to
protect the natives from being displaced by the white settlers from areas of
land agreed upon in the concession (Mvunga, 1980). 15 An important
development from the 1911 Order was that, it divided land into two parts, to
wit, Barotseland and other land. While the Litunga, the King of the
Barotseland, retained his powers to administer Barotseland, other lands
became subject to the Company rule except for the provision aforementioned
that Africans would not be removed from their land save only upon inquiry
and by the order of the Administrator approved by the Commissioner. These
concessions generally granted various rights to the BSA Company, inter alia,
to search and prospect for minerals in the whole territory of the Barotse
including the surrounding territories that were subsisting on the main land.
The BSA Company went ahead to alienate and administer the land on the
basis of these concessions (Ndulo, 1987). 16 Mvunga (1980)17 opined that in
1924, an Order was introduced revoking the earlier 1911 Order in Council.
The 1924 Order took away the administration of Northern Rhodesia to the
British sovereign. Further, the 1924 Order did not vest land in the Governor
appointed to represent the British sovereign. The Governor though, was
empowered to make grants through dispositions outside Barotseland. 18 The
Council-in-Order introduced the Crown Land and Native Reserves, clearing
any doubt about which land was in the Crown. Crown Land was for the
occupation of the white settlers only. British statutory law applied to those
14

P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System,

NECZAM, 1980.
15

P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.

16

M. Ndulo, Mining Rights in Zambia, Kenneth Kaunda Foundation, Lusaka, 1987.

17

P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.

18

Order-in-Council of 1924, Article 2.

areas. The Governor of Northern Rhodesia granted freeholds or leaseholds

in this land. Leaseholds were granted for 99 years and in agricultural land for
999 years. The Native Reserves were designated for the exclusive use of
indigenous people and customary law applied to those areas. Non Natives
were allowed to hold land in reserves for not more than five years (Mvunga,
1980).19
The Northern Rhodesia Order in Council 1928
In 1924, the British government took over the administration of the then
Northern Rhodesia from the BSA Company. Hence, with effect from the said
date, the BSA Company assigned and transferred to the Crown all such
rights and interests in land as it claimed to have acquired by virtue of the
concessions granted by Lewanika. The change of administration was
followed with the passage of the Northern Rhodesia Order-in-Council of 1924
which amongst others, constituted the office of the Governor in place of the
Administrator. The 1924 Order was however, repealed by the 1962 Northern
Rhodesia Order-in-Council of 1962. Again, as in the former case, the
Governors powers to grant land to non-Africans were subject to the rights
enjoyed by Africans who were in occupation of the land at the time of the
grants, except for the three freehold areas claimed by the BSA Company. A
Commission, Native Reserves Commission East Luangwa was constituted
shortly after the 1924 Order, to look into what land should be set apart for
African occupation in Fort Jameson (now Chipata) and Petauke districts
(Mvunga, 1980).20 Other commissions followed for the rest of the country.
This precipitated the Northern Rhodesia Order-in-Council 1928 which divided
land into Crown Land and Native Reserves except for Barotseland, three
pieces of freehold belonging to the BSA Company, including the BSA
Company alienated in perpetuity before 1924. The reserves were vested in
the Secretary of State for colonies for the sole and exclusive use and

19
20

P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System.

occupation of Africans (Order-in-Council, 1924). 21 Then in 1930, the colonial

Government introduced a policy which was stated to be that of providing for
the natives sufficient land to enable them to develop a full native life in their
own areas; sufficient land to meet the inevitable expansion of the indigenous
population on these areas, and sufficient to enable government release the
rest for European settlement. The Crown Lands were to be for European
settlement and Africans were not to have access to this land which
comprised about 6 per cent being land along the line of rail from Livingstone
to the Copperbelt and some pockets in Eastern Province, Mbala, Mumbwa,
Mkushi and Mwinilunga. Africans on the land designated Crown Land were
evicted and driven to Native Reserves (Mvunga, 1980). 22
In 1942, government announced a new land policy. Land that was not
alienated or that which had not already been set aside for Africans would be
declared Native Trust Land. This land would be vested in the Secretary of
State for Colonies for the sole and exclusive use and occupation of the
natives of Northern Rhodesia. This though was made subject to the provision
for alienation for specific periods: (a) to individual natives; (b) for the sole
purpose of establishing townships; and (c) to non-natives in special cases in
respect of limited areas where such alienation can be shown to be for the
benefit of the natives and where the land is not required for direct occupation
provided that in such special cases, not more than a maximum of 6,000
acres is alienated to non-natives in respect of each of the existing provinces.
According to Roth (1995),23 extensive changes in the tenure arrangements
for commercial farming on leases of Crown Land accompanied the Land
Ordinance of 1956, which introduced the concept of progression whereby a
farmer who performed satisfactorily could upgrade tenure from leasehold to
freehold. The 1956 ordinance was later repealed by the Colonial Government
and replaced by the Agricultural Land Act, 1960, which remains in force and
21

Northern Rhodesia Order-in-Council, Lusaka, Zambia Government Printers, 1924.

M. P. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
23
M. Roth, Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
22

provides for the allocation of agricultural leases on State Land. Later on in

1959, the colonial government established the Northern Rhodesia Order in
Council 1959. They did so in order to address the problems which arose as a
result of the establishment of the Kariba Dam. The Order applied to the
Gwembe Administrative District. It authorized the inundation of land and gave
the Governor special powers relating to the making of grants of land, fishing
disposition and the making of regulations applicable only to the Gwembe
Administrative District (Mudenda, 2007).24
Mvunga (1980)25 postulates that in 1947 a new term of land called Trust
Land, was implemented in the law. This land was carved out of the Crown
land and meant for the occupation of indigenous people. The difference
between Trust Land and Native Reserves is that the duration of a non-native
interest was 99 years in Trust Land. In Trust Land non-natives could be
granted land if this was seen to be in the interest of both races. Alienation of
land in Reserves and Trust Land required the consent of the native authority.
The same year saw the revision of the policy which reserved a large
proportion of the country for the white settlers. Trust Land was not subjected
to the same restrictions as the Reserves and could be leased to non-natives.
Interests and land rights in Trust Land fell under customary law and the
administration of the traditional authorities. The policy of land reservation
through the Reserves and Trust Land did not apply to land in Barotseland.
According to the Barotseland North-Western Rhodesia Order in Council of
1899, land in the central regions of Barotse was set aside for the Litunga and
his people.26

24

Mudenda, F. S, Land Law in Zambia: Cases and Materials, University of Zambia Unza Press,
Lusaka, 2007.
25
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980.
26
Barotseland North-Western Rhodesia Order in Council of 1899.

Land Reforms in Post-Independence Era

Mvunga27 states that Zambia inherited four categories of land in 1964: Crown
Land which was renamed as State Land, Freehold Land, Reserves and Trust
Land. All land in Zambia (save the Barotse reserve) was vested in the
president for and on behalf of the people of Zambia. English law continued to
apply to State land while customary law continued to apply to reserves and
trust land. The policy of land reservation through the concept of native
reserves and trust land did not apply in Barotseland. The Barotseland
Agreement of 1964 recognised and guaranteed the powers of the Litunga
over land in Barotseland as governed by customary law of the Lozi people as
they were in Article 8 (2) of the Independence Constitution of 1964. This
arrangement prevailed until 1970, when the special status of the Barotse
reserve was withdrawn. It was the exclusive domain of the Lozi King and his
people. The BSA Company overestimated the power of the King in the
beginning of the colonial period. They thought that the grant of land
concession from the Lozi King was a sufficient source of title. The notion that
protectorate status meant ownership of vacant land by the crown or its agent
was in 1901 cemented judicially in the British Central African Protectorate
(later Nyasaland) in the case of Cox v African Lakes Corporation Limited 28
(also known as the Kombe Case). Nunan, J., ruled that the effect of a
protectorate was to vest in the Crown the entire soil of the British Central
African Protectorate not especially exempted and to confer upon the Crown
the same prerogative and sovereign rights as in England However, in
1919, this notion that protectorate status entailed ownership of vacant lands
by the Crown or its agent was disputed by the Privy Council in re Southern
Rhodesia.29 The issue in this case was to establish who owned the vacant
and unoccupied lands in Southern Rhodesia: was it the Crown, the B.S.A
Company or the indigenous people? The Privy Council dispelled the
27

P. M. Mvunga, Land Law and Policy in Zambia, Gweru; Mambo Press, 1982.
P. M. Mvunga, The Colonial Foundations of Zambias Land Tenure System, NECZAM, 1980,
Lusaka.
29
Re: Southern Rhodesia (1919) A. C. 211.
28

Companys argument that they owned the land by virtue of the fact that they
were the first to occupy the territory. In rejecting the argument, the Privy
Council stated that in itself and by itself, occupation is not title. It went on to
assert that the Crown could only establish ownership or dominion over the
land by an express indication and such an indication should be expressed by
an Order-in-Council. The 1926 Native Reserves Commission decided that
this was a case of Nemo dat quod non habet, no one can give away what
one does not have. However, in 1970, the amendment to the constitution of
Zambia allowed uniformity in the land tenure system. The Barotse area was
put formally on par with Reserves and Trust Land elsewhere in the country
(Mvunga, 1980).30
Regarding the Barotseland, shortly before independence it was felt that
provision should be made to retain the status quo in regard to the land issue
in that area within the unitary form of government of independent Zambia.
This was achieved by the Barotse Agreement of 1964, negotiated and
entered into by the succeeding Zambian Government, on the one part and
the Litunga on the other (Mvunga, 1977). 31 The Agreement stated that, the
Litunga of Barotseland and his Council shall continue to have the powers
hitherto enjoyed by them in respect of land matters under customary law and
practice.32
Following the philosophy of Humanism, the government enacted laws that
established state control in all matters of land. Thus, this was done through
reforms announced in the Mulungushi Economic Reforms of 1968 and it
included the following clauses:
(i)

All land should be vested in the President of the Republic of

Zambia;

30

M. P. Mvunga, The Colonial Foundations of Zambias Land Tenure System, p. 38, NECZAM, 1980,
Lusaka.
31
M. P. Mvunga, Land Law and Policy in Zambia: An Appraisal of the Lands Acquisition Act, Ph.D.
Thesis, University of London, 1977.
32
The Barotse Agreement 1964, Cmnd. 2366, Clause 5 (2).

(ii)

All land under freehold should be converted to leasehold tenure

or hundred years;

(iii)

Land under customary tenure not to be converted into

leasehold, and

(iv)

Land reforms should be directed at improvement of the use of

agricultural land (Mvunga, 1977).33

In 1969 the Government of Zambia amended the Constitution to provide for

Compulsory Acquisition of land in public interest. Further in 1970,
Government enacted the Western Province (Land and Miscellaneous
Provisions) Act, 1970 to declare all land previously administered by the
Litunga as a Reserve pursuant to the Zambia (State Land and Reserves)
Orders in Council of 1928 to 1963. These changes did not change the dual
nature and reservation essence of land administration established by
Colonial authorities for the purpose of foreign occupation and exclusion of
Africans from statutory land tenure protection. Since independence Zambia
has undergone three tenure reform processes. The first and founding phase
was the enactment of the Land (Conversion of Titles) Act 1975 which
converted all land to state ownership. Under this Act freehold tenure was
abolished and existing interests converted to statutory leasehold of 99 years
duration. Hence as of 1975, land could be held wither through leasehold title
or customary tenure (unregistered). Only developments on land could be
sold, not the land itself. This was popularly construed to mean that land had
no value. All land was vested in the President and under-utilized farmland
was nationalized (Wily & Mbaya). 34 Subsequently, it did forbid the subdivision
and sublease of land without the Presidents consent (Dorner, 1972). 35
Private ownership of land ceased to exist and all land was declared to have
no value attached to it. Real estate agents were therefore ordered to close
33

P. M. Mvunga, Land Law and Policy in Zambia, Gweru, Mambo Press, 1982.
L. A. Wily and S. Mbaya, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
35
Dorner, P., Land Reform and Economic Development, Harmondsworth, England, Penguin, 1972.
34

down. It also nationalized idol and undeveloped land. The English system of
freehold obtaining in Crown land, now state land, and until 1969 protected in
the independence constitution was abolished (Bingham, 1993). 36 This gave
the government the much needed latitude with which to impose controls and
conditions on the rights of land holders. After the 1975 Land (Conversion of
Titles) Act, state consent had to be sought before any transaction in land
could take place. The Circular No. 1, Procedure on Land Administration
(1985), showed further resentment of land ownership by prohibiting nonZambians from acquiring land without the written permission from the
President (Bingham, 1993).37 These reforms however, brought about
unforeseen constraints, inter alia, significant restriction of the publics access
to land and property resulted in an artificial land shortage. The introduction of
the requirement for state consent brought complications in the procedures of
land acquisition, causing administrative delays and less land was brought to
productive use as those who have no capacity to develop it are legally
inhibited from selling off undeveloped plots.
In 1985, following governments concern that land was going into the hands
of foreigners at the expense of Zambian nationals, the Land (Conversion of
Titles) Act was amended to ensure that no land in Zambia would be granted,
alienated, transferred or leased to a non-Zambian (Land Act). 38 This law also
intended to protect land under customary tenure. In the same year, partly to
gain favour with the chiefs and partly in recognition of the custodianship of
customary law and rights, the government decided that the chiefs out to be
formally consulted when customary land was being granted for leasehold
purposes in terms of the Zambia (State Lands and Reserves) Orders, 1928
to 1964, and the Zambia (Trust Land) Orders, 1947 to 1964. The chiefs
powers are confirmed by the Lands Act 1995 and Circular No. 1 of 1985,

36

M. G. Bingham, Land Tenure in Zambia, 1993.

M. G. Bingham, Land Tenure in Zambia.
38
Land (Conversion of Titles) (Amendment No. 2) Act, No. 15 of 1985.
37

which is still in force. According to Roth (1995) 39, until independence, chiefs
held responsibility for all land in the Reserve and Trust areas. After
independence, the chiefs were relieved of their de jure responsibilities for
land allocation, but their de facto position probably changed very little as they
were not replaced by effective structures. The amount of traditional land that
chiefs and councils could allocate was restricted to a maximum of 250
hectares. The Lands Acquisition Act of 1990 allowed the state to expropriate
property (Wily & Mbaya, 2001).40
Land Reforms in the Current Multi-Party Democracy Era
Wily and Mbaya41 contend that in, the political situation in Zambia reverted
back to multi-party politics with the amendment of the constitution. This saw
the exit from office of the UNIP party and the ushering into power of the MMD
party. With this change of government came inevitable changes to various
policies and related laws. In addition to the change to a multi-party political
system in 1991, there was a desire by the government to speed up economic
development. And so in the MMD manifesto it was outlined among other
things that:
The MMD shall institutionalize a modern, coherent, simplified and
relevant land Law code intended to ensure the fundamental right to
private ownership of land as well as to be an integrated part of a
more efficient land delivery system. To this end, the MMD
government will address itself to fundamental land issues in
order to bring a more efficient and equitable system of tenure
conversion and land allocation in customary land; land adjudication
legislation will be enacted and coordinated in such a way that
confidence shall be restored in land investors the MMD shall
39

Roth, M. Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
40
Wily, L. A. and Mbaya S, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
41
Wily, L. A. and Mbaya S. Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.

attach economic value to undeveloped land and promote regular

issuance of title deeds to productive land owners in both rural and
urban areas.42
Thus in 1991, a change of government saw a promotion of the private sector.
A National Conference on Land Policy and Legal Reform was convened in
1993. An amendment to the 1985 law was drafted and provisionally approved
by Cabinet in late 1993. This included a proposal to repeal the 1975 Act and
reintroduce freehold tenure. The plan was that land would remain vested in
the President and the law would enable him alienate land without seeking
approval of local authorities. These measures were designed to attract
foreign investment. The Land Act, No. 29 of 1995 is the current operational
basic tenure law. The law divides the country into customary land and state
land; the latter includes leasehold land, government land kept for parks and
reserves, and land government devolves for district councils to administer
and allocate. Councils may issue 99-year leaseholds over these land.
Leaseholds are at the will of the President and may be made out of
customary and state land. An innovation was to make all leases potentially
99-year leases and the President may renew these. Parliament may approve
the issue of freehold rights in certain limited circumstances. 43
A fundamental change in the law is that it reversed the principle of the 1975
Act that undeveloped land has no value. The 1995 Act acknowledges
undeveloped and bare land as having value and restricts the powers of the
commissioner

to

repossess

undeveloped

properties.

The

right

to

compensation when the state does appropriate land has been increased.
The law also saw a weakening in the 1975 laws requirement for Presidential
consent to transactions. No provision is made for informal rights in state land
(Wily & Mbaya, 2001).44 Another milestone that the 1995 Act has scored is
42

MMD Manifesto, 1991.

Brown, T. Contestations, Confusion and Corruption: Market-Based Land Reform and Local Politics
in Zambia, 2003.
44
L. A. Wily and S. Mbaya, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
43

that a person shall not sell, transfer or assign any land without the consent of
the President and shall accordingly apply for that consent before doing so,
this is pursuant to Section 5 (1). There is a significant difference here
compared to the 1975 Act which required Presidential consent for any
transaction or dealings in land. The 1995 Act only requires Presidential
consent in cases of sell, transfer or assignment of land. 45
The government embarked on aggressive donor funded policy reform
exercises aimed at freeing up Customary Land and Trust Land for private
investment through leasehold title. A National Conference on Land Policy and
Legal Reform was convened in mid-1993. An amendment to the 1985 law
was drafted and provisionally approved by Cabinet in late 1993. It included a
proposal to repeal the 1975 Act and reintroduce freehold tenure. The plan
was that land would remain vested in the President and the law would enable
him to alienate land without seeking the approval of local authorities. These
measures were designed to attract foreign investment. The government
intended to ease the artificial land shortage especially along the line of rail
where most towns are domiciled (Roth, 1995).46 The MMD government set
out to effect a land policy that would embrace private ownership of land in a
free market economic environment. Thus in 1995, under duress from the
World Bank, the government passed a hastily prepared Land Act in
parliament despite some fierce resistance from local chiefs and opposition
parties in parliament (Roth, 1995).47 In order to reassure traditional leaders of
their power over Customary Land, the Act maintains that the President, in
whom all land is vested, shall not assign land governed under Customary
Tenure without consulting the chief. Leasehold Title can now be held in
Customary Land with the consent of chiefs. The same Act made it possible
for approved foreign investors, foreigners who are Zambian residents or
45

F. S. Mudenda, Land Law in Zambia: Cases and Materials, University of Zambia Unza Press,
Lusaka, 2007.
46
M. Roth, Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.
47
M .Roth, Land Tenure, Land Markets and Institutional Transformation in Zambia, Land Tenure
Centre, Madison, 1995.

foreigners who have received personal presidential consent to acquire title to

land. (Lands Act, 1995).48 Part IV, Section 22 of the Lands Act created a
Lands Tribunal to protect leaseholders and customary rights holders from
abuse and to ease congestion within the High Court. The Tribunals broad
mandate is to inquire into and make awards and decisions relating to land.
The Tribunal was intended to be informal, low-cost and mobile so as to be
easily accessible to rural and low-income Zambians.
Wily and Mbaya 49 argue further that a fundamental change in the 1995 Act is
that it reversed the principle of the 1975 Act that undeveloped land has no
value. The 1995 Act acknowledges undeveloped and bare land as having
value and restricts the powers of the Commissioner to repossess
undeveloped properties. The right to compensation when he state does
appropriate land has been increased. Other changes that have been brought
about by the 1995 Act are that permission from the chief to sell land is
required. Land itself has regained value, although not directly stated, with
sales of vacant land not just improved land or land with developments upon
it. Section 8 of the 1995 Act allows customary landholders to convert their
land into 99-year leaseholds with the chiefs approval in whose locality the
land to be converted is domiciled. The case of Siwale v Siwale50 attests to
this fact. Though few citizens have done so, because of the survey and other
costs involved and lack of information or accessible administrative support;
entitlement is fully centralized in a slow bureaucracy.
To show why so many citizens have not managed to convert customary
landholders into leasehold tenure, the system of land administration requires
appropriate survey standards and a 14-year lease. In the Lands and Deed
Registration Act (Chapter 287) in Section 12, it is a prerequisite that a

48

Lands Act No. 29 of 1995, Chapter 184 of the Laws of Zambia.

L. A. Wily, and S. Mbaya, Land, People and Forests in Eastern and Southern Africa at the Beginning
of the 21st Century, 2001.
50
Siwale v Siwale, S.C.Z, 24, 1999.
49

diagram be presented pursuant to Chapter 293 of the Survey Act, together

with any documentation relating to the land in question.
As has already been alluded to, the 1975 Land (Conversion of Titles) Act had
far-reaching implications on land tenure in Zambia. It did abolish the freehold
tenure and replaced it with the leasehold tenure. It declared land, except for
improvements on it, free of commercial value. For each transaction, the Act
required that the President must give consent before the parties went ahead.
Those that tried to skip the presidential requirement regretted their actions
because if the other party decided not to honour the agreement, the courts
would not enforce it (Hansungule, 1998).51 Hansungule further argues that:
The motives behind the 1995 Land Act must be very clearly
understood. This Act was motivated by the World Bank and
Western countries. The Bank wanted to push for radial land
reforms in Zambia as a condition for the Banks support. At one
time, the Bank was even withholding economic assistance to the
tune of millions of dollars until the new land legislation based on
the concept of land market was introduced. One of the radical
measures the Bank attempted to introduce but for which there was
no political will in the Zambian political establishment was the
auctioning of land. In the end, the Banks managed to get the Land
Act pushed through the Zambian legislature despite protests from
across the country. This is why the Land Act is very market
oriented.52
The justification for bringing land on the open market by both the World Bank
and the government was that customary land tenure is insecure and has
severe limitations compared to leasehold tenure. The policy argues that by
converting their customary holdings into leaseholds, the villagers will be able

51
52

M. K. Hansungule, Land Law and Policy in Zambia, Lusaka, 1998.

M. K. Hansungule, Land Law and Policy in Zambia.

to use their land as collateral to secure credit to invest in their farms and
businesses.53
The conversion of customary tenure to leasehold was enhanced in the third
republic for the government of the day thought embedding this piece of
legislation in the law would provide some form of security of tenure to
customary land holders. It was also thought to be the means to encourage
investment in agriculture production.54 With the advent of the 1995 Act, which
allows customary landholders to convert their land into 99-year leaseholds, a
lot of customary land is being converted to leasehold at an unprecedented
scale, leaving the locals with very little or no land at all (Brown, 2003). 55 It is
because of this wholesale conversion of land that the Minister of Lands at the
time had to issue the following policy statement towards land management in
part:
I have been prompted to address August house on the subject of
customary tenure as this form of tenure has been abused. It is
important that the House is updated on the measures the ministry
is putting in place so that they can explain to the people. The
abuse has been by way of land being given to foreigners as well as
some rich Zambians and entering into agreements with persons
who are not subjects of that chiefdom, and yet it is called
Customary Tenure and should largely benefit the local people.
This is unacceptable and must stop forthwith. The following are
some of the ways in which customary tenure has been abused.
According to Land Circular No. 1 of 1985, chiefs can only allocate
land up to 250 hectares in their areas of jurisdiction. However,
there are several cases in which this provision has been flouted.

53

Draft Land Tenure Policy, Ministry of Lands, Lusaka, 2000.

Movement for Multi-Party Democracy Manifesto, Campaign Committee, Lusaka, 1991.
55
T. Brown, Contestations, Confusion and Corruption: Market-based Land Reform and Local Politics in
Zambia, 2003.
54

As such, my ministry will ensure that no land in excess of 250

hectares is alienated by a traditional authority.
This is one area where there has been abuse in some parts of the
country by a few greedy traditional leaders where foreigners and in
some cases, rich Zambians are secretly approaching chiefs and
headmen acquiring huge portions of land in excess of 250
hectares at the expense of the local people. Government will not
allow this abuse to be perpetrated by a few at the expense of other
innocent Zambians.
The Lands Act of 1995 in section 4 provides that Consideration or
fees is only payable to the President. This means that it is illegal;
for any other entity including our chiefs or headmen to charge a
Zambian for trying to acquire customary land. It is not only illegal
but an abuse of the system and clear exploitation of innocent
Zambians. In fact, these illegal sales are benefitting only the
people selling and are not supported by any law at all. This is also
favouring people with money who can easily afford to pay these
unregulated fees at the expense of poor and vulnerable Zambians,
and it is against the PF pro-poor policy.
There has been an increase in the number of forest reserves and
protected areas across the country which have been encroached.
This has affected the sustainable management of forests and other
protected areas like Game Parks which are key to the
development of this country.56
Although the Lands Act of 1995 abolished the various statutory
enactments already mentioned, it still seeks to provide protection to

56

Policy Statement By Hon. Harry Kalaba, MP, Minister of Lands, Natural Resources and
Environmental Protection on Management and Administration of Customary Land in Zambia,
Mulungushi House, Lusaka, Issued on 13th December, 2013.

holders of customary land by providing that the President shall not

alienate any land held under customary tenure: 57
(a)

Without taking into account the local customary law on land

tenure which is not in conflicts with the Lands Act;

(b)

Without consulting the chief and local authority in the area in

which the land is situated;

(c)

Without consulting any other person or body whose interest

might be affected by the grant; and

(d)

If an applicant for a leasehold title has not obtained the prior

approval of the chief and the local authority within whose are the
land is situated.

The Constitution of Zambia (Amendment) Act, 2015, 58 includes an article

establishing the Lands Commission. Article 233 (1) mentions that the Lands
Commission has been established and shall have offices present in all
Provinces and progressively in districts. In the same article now looking at
(2), it mentions that the mandate of the Lands Commission shall be to
administer, manage and alienate land on behalf of the President, as
prescribed. This will help decentralize the service delivery in terms of land
formalities.
Conclusion
This essay has demonstrated that Zambia is still grappling with the land
tenure that is workable locally. Land management has from time immemorial
been a controversial issue. It is wrong to have vested all the land in the
President in the first place. Chiefs too abuse the provision given to them of
allocating land of not more than 250 hectares. If land management continues
in this same manner, in a few years time, most if not all the land the in the
57
58

The Lands Act No. 29 of 1995, section 3 (4).

The Constitution of Zambia (Amendment) Act, 2015.

country will be in the hands of foreigners. Another problem facing the

administration of land in the country is that there is need for skilled labour at
the Ministry of Lands. There is no systematic field investigations of locating
the properties that need to be acquired within the provisions of the Act. A
body should be set up to look into land management and alienation, be it
statutory or customary land. This body will be governed by rules and
regulations in the disbursement of land. By so doing, the problems being
faced in the management of land today can be overcome.