An evaluation of the proceedure on alienation of customary land in Zambia

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Khonde, Mutete S.
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Zambia enjoys a dual form of land tenure namely, customary and statutory tenure. This position is a product of the factors emanating from pre-colonial times through the colonial period ending with the post-independence era. The objective of the study was to evaluate the procedure on customary land alienation in Zambia. The study examined the nature of interests subsisting under customary land tenure. The study also investigated the weaknesses inherent in these interests.Moreover the research went on to analyse the legal and institutional framework regarding customary land tenure and alienation procedures. In order to achieve this it became imperative to similarly examine the relevant case law. The methodology used involved analyzing published and unpublished sources based on desk research through collecting, analyzing and processing data on the procedure of customary alienation in Zambia. The materials used included text books, statutes, journals, theses and reports. The study also conducted interviews of officials in the Ministry of Lands and the House of Chiefs. From this the research findings revealed that contrary to popular belief that individual interests in land are non-existent under customary tenure this was not so. They existed side by side with communal interests in land. However, alienation procedures were largely uncodified and varied from one tribal custom to another. This problem was compounded by the fact that the existing legal regime was silent the alienation procedure within the context of customary land tenure save for the mere guideline on the conversion of customary land tenure into statutory land tenure. The study revealed the fact that while alienation procedures within statutory land tenure were clearly established within the existing legal regime, it was not so within customary land tenure. What was further interesting to note was that conversion of customary land tenure into statutory land tenure was well provided for in Zambia's legal system, but not the alienation procedure within customary land tenure itself. The study also found that the institutions engaged in alienating customary land were as diverse as the practice itself was uncodified. The study concluded by emphasizing the need to put in place a well codified piece of legislation spelling out clear land alienation procedures within customary tenure, in order to foster economic development in the vast tracts of customary land available in Zambia. The study recommended that the institutions dealing in land metters should be restructured so that only institution alienates land in Zambia and the role of chiefs in land alienation should be clearly defined by amending the Chiefs Act. Furthermore, a statutory procedure should be enacted that takes into account common customary rules on land alienation. A predictable customary land alienation procedure would mark an advancement in the existing legal regime, as well as extinguish doubts in the stability of interests of land held under customary tenure and passed on from one individual to the other.
Land use , Customary land--law