THE LEGALITY OF CUSTOMARY LAND DOCUMENTS ...

THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM

THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM IN ZAMBIA

TENURE AND GLOBAL CLIMATE CHANGE (TGCC) PROGRAM

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This publication was produced for review by the United States Agency for International Development by Tetra Tech, through the Tenure and Global Climate Change Project, Contract No: AID-OAA-TO-13-00016.

Cover Photo: Community members from Mgamphula village in Mkanda Chiefdom pose with their customary land certificates

Report Authors: Raymond Harricannies Kaima and Malikana Chewe Suggested Citation: Kaima, R. H., & Chewe, M. (2017). The legality of customary land documents within

the existing formal legal system in Zambia. Washington, DC: USAID Tenure and Global Climate Change Program.

Prepared by: Tetra Tech 159 Bank Street, Suite 300 Burlington, VT 05401 Principal Contacts: Matt Sommerville, Chief of Party [email protected] Cristina Alvarez, Project Manager [email protected] Megan Huth, Deputy Project Manager [email protected]

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THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM IN ZAMBIA TENURE AND GLOBAL CLIMATE CHANGE (TGCC) PROGRAM

MAY 2017

DISCLAIMER

This report is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents of this report are the sole responsibility of its authors and do not necessarily reflect the views of USAID or the United States government.

THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM i

TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................................ i

ABSTRACT ..................................................................................................................................................... ii

1.0 INTRODUCTION ................................................................................................................................ 1

1.1 RESEARCH METHODOLOGY ................................................................................................................................ 2

1.2 DATA ANALYSIS ................................................................................................................................................... 2

2.0 FINDINGS ............................................................................................................................................. 3

3.0 CONCLUSIONS .................................................................................................................................. 9

3.1 LIMITATIONS ......................................................................................................................................................... 9

REFERENCES ............................................................................................................................................... 11

WORKS CITED ............................................................................................................................................................................. 11

CASES STUDIED ............................................................................................................................................................................. 11

LEGISLATION STUDIED .................................................................................................................................................................. 12

SITES VISITED ............................................................................................................................................................................. 12

ii THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM

ABSTRACT Customary land documentation in Zambia has remained elusive with a general understanding that whatever is customary is usually not written and documented. This has led to conflicts and disputes in determining boundaries to the extent of one’s land. In order to improve security of tenure, the documentation of customary rights has been proposed by traditional authorities, as well as civil society organization. In recent years international and local models for registering and securing customary land have emerged (Knight, 2010). Van der Molen et al (2004, 2005) discuss village titles, certificates or rights of occupancy, group ranches, flexible titles, land sharing constructions, customary rights issued by Land Boards, co-ownership, and communal titles, as a range of examples that can be used to secure rights. But in Zambia, these models are piloted amidst a gap in the legal framework to support the legal recognition of these documents.

Stakeholders who were interviewed agree that customary land is legal within the formal legal system, arising from provisions of the Lands Act (Cap 184, s7 (2)). Customary tenure is therefore legally provided for in the formal system. Mudenda (2006) further posits that the recognition of customary tenure is derived from the law. Customary land can be understood to mean land that is held under traditional leaders for and on behalf of their subjects (Machina, 2008), or simply put, land where customary tenure is exercised (Land Policy, 2015). Customary tenure refers to land rights that are allocated and controlled according to traditional practices (ibid)

Lawyers, judges, and academics interviewed under this research were split in their judgment as to whether customary documents can be considered legal within the formal legal system. The general consensus is that a document which is not declared illegal by law is legal in that sense. Some felt that in the absence of a legal framework explicitly providing for these documents, they remain worthless from a legal perspective. However, the same individuals were quick to intimate that they are only tenable and ‘legal’ within the spectrum of customary tenure and not outside its tenets.

The majority of those interviewed felt that there is more that needs to be done to standardize and legitimatize customary documents. One-third hinted that traditional leaders should continue issuing out these documents, but should have their capacity built and strengthened. Two-thirds of the respondents indicated that it is not enough to let traditional leaders alone issue out these documents, citing a lack of capacity, management, personnel, and skills to afford running such a mammoth task. They suggest that there is need to integrate traditional leaders and government departments. Examples cited are the local authorities and line ministries involved in the management of land and traditional leadership.

THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM 1

1.0 INTRODUCTION Customary land documentation in Zambia has remained elusive with a general understanding that whatever is customary is usually not written and remains undocumented. This has led to insecurity of tenure further leading to conflicts and disputes in determining boundaries to the extent of one’s land. In order to improve security of tenure, the documentation of customary rights has been promoted in Zambia, and increasingly across a range of countries (Knight, 2010). Prior to the Zambia Lands Act of 1995, Mulimbwa (1993, cited in Mulolwa, 2006) proposed the documentation of customary rights. The documentation of customary rights support are important as an evidence base, not only for individual rights, but also for communal and concurrent rights. Van der Molen et al. (2004, 2005) mention village titles, certificates or rights of occupancy, group ranches, flexible titles, land sharing constructions, customary rights issued by Land Boards, co-ownership, and communal titles as examples of rights recognition tools that can be used. But in Zambia, these models are piloted amidst a gap in legal frameworks to support the documents. Zambia Land Alliance (2013) indicates that documentation of customary land will reduce conflicts and bring meaningful development to land.

Registration and documentation of customary land in Zambia has in the recent past taken a hype considering the global rush for land (Land Matrix Zambia, 2015), especially in Africa (ACALAG, 2016). This has led to a sense of awareness for customary landholders that there is a need to secure their land. A number of donor-funded projects have assisted in this registration and documentation (TGCC, 2006). It has been proposed that registering customary land reduces conflicts as it clearly spells out the boundaries and extent of one’s land, and documents a legal holding of land either individually or collectively (Draft Land Policy, 2016). In each of the cases piloted in Zambia, the process of documentation is done transparently, with all affected members taking part from the onset; a step-by-step process that leads to the final printing of the customary certificate (ZLA, 2015). In Africa, Botswana (Botswana Tribal Act 1968), Tanzania (Village Lands Act 1999), and Mozambique (Land Law 1997) have enacted legislation that support customary land documentation (Kaima, 2011). However, the same cannot be said of Zambia, which has shelved a proposed piece of legislation since 2014 that aimed at supporting customary land registration and documentation. However other government publications are in the public domain that aims at ensuring that customary documents are legally recognized (Draft Land Policy 2015). Conversely, the Deeds and Registry Act (Cap 185 s28) provides that grants of land made by a chief are not affected by this law1. Could this then mean that customary land documents are legally recognized? Precedent exists whereby the validity of traditional methods of securing customary land have been recognized in Zambia’s formal system.

This research aimed to study and understand the level of legal validity and status of customary land documents within the formal legal system. Customary documents include letters of transfer, traditional land holding certificates, village registers, farm permits, and any other document that confers authority over customary land. To this end, the research carries some cardinal questions in answering the above. These are: are customary documents legal and of a legally acceptable standard within the existing legal framework? What is the value of customary documents in Zambia, and how have courts adjudicated upon them in cases where they have been called into evidence?

1 The section provides as follows: Nothing in this Part contained shall affect any concession or grant of land or any interest in land heretofore or hereafter made by any chief or any power of attorney or instrument or document of procuration heretofore or hereafter granted by any such chief.

2 THE LEGALITY OF CUSTOMARY LAND DOCUMENTS WITHIN THE EXISTING FORMAL LEGAL SYSTEM

The hypothesis of the research is hinged on the understanding that without a legal enactment backing the documentation, these documents remain vague and legally unrecognized but customarily valid.

1.1 RESEARCH METHODOLOGY This research applied qualitative methods of capturing and analyzing data. To collect data, it used structured interviews with key informants and review of secondary data by way of desk research. The key informants were traditional leaders, officers from the judiciary and officials from government wings and agencies. Structured interviews were conducted with officials from the Ministry of Lands, specifically the Registry and Deeds department; members of the Lands Tribunal in Lusaka; local court magistrates; and, university professors, with specific focus on land law. These officials were targeted because they formulate government policy; they render legal opinions; and/or are involved in adjudicating matters related to customary documents.

Another source of data was secondary: all relevant legal pieces of legislation, as relates to land were studied. These included but not limited to: the Lands Act (Cap 184); the Deeds and Registry Act, (Cap 185); the Urban and Regional Planning Act (2015); and the Draft Land Policy (2016), among other regional and international legislation. Various publications on land governance were also examined to inform the discourse. Further, court precedents from the Magistrate, High Court, Lands Tribunal, Supreme Court, traditional courts, and local courts were reviewed to inform the research questions. The majority of the work was undertaken based on discussion with the courts and legal advisors to identify case law around the use of documentation from traditional authorities in court decisions. Further some fieldwork occurred through discussions in Nyamphande and Ndake Chiefdoms. Targeting traditional leaders was done to understand how traditional leaders have used the documentation that they issue.

1.2 DATA ANALYSIS Data cleaning from the various interview guides and case studies, case law, and literature was done manually whereas the analysis to interpret the data was done using Excel.


2.0 FINDINGS Table 1 indicates the types of stakeholders who were interviewed for this research. This was largely a mix between legal experts and those directly involved in management of customary land.

TABLE 1: STAKEHOLDERS INTERVIEWED

Type of Stakeholder Number Interviewed

Chiefs 1

High Court Judges 4

Indunas 4

Members of Lands Tribunal 4

Traditional Court Justices 4

Lawyers 8

Local Court Justices 2

Headpersons 4

Lecturers 1

Academics 2

Land Experts 2

All the stakeholders (100%) agreed that customary land is legal within the formal legal system; this arises from the provisions of the Lands Act (Cap 184, s7 (2)), which provides for the recognition of customary tenure. Customary tenure is therefore legally provided for in the formal system (Mulolwa, 2006). Mudenda (2006) further posits that the recognition of customary tenure is derived from the law. Customary tenure can be understood to mean land that is held under traditional leaders for and on behalf of their subjects (Machina, 2008). It can also be said to be land where customary tenure is exercised. Customary tenure refers to land holding where rights are controlled and allocated according to customary practices (Draft National Land Policy, 2016).

All traditional leaders (chief, indunas, headpersons, and traditional court justices) are aware of customary land documents. However the picture is gloomy when it comes to academics and some judges and legal practitioners. Of the categories outlined above, in total only 12% could explicitly state examples of customary land documents. Overwhelmingly, all stakeholders feel that it is important to document customary land as this will give security of tenure to customary land holders and provide proof of ownership. It is further envisaged that documenting customary land will enable it to be valuable on the market (Land Policy, 2016) though Smith (2005) argues that there is additional reform required to facilitate this. However much as it has not been documented, speculation and rush for land still remains high, and all stakeholders alike admit that customary land in fact has value.

Fifty-five percent of the legal advisors interviewed understand these documents to be legal within the formal legal system, the general consensus being that a document that is not declared illegal by law is legal in that sense. Further, these documents derive their legal validity from the law that recognizes the


authority of traditional leaders. It was posited that the legality of customary land gives authenticity to the document that aims at protecting it. Mulolwa (2006) argues that from both the legal and traditional perspective, the chiefs’ institution is legitimate (Chiefs Act, Cap 287); he further posits that within their jurisdictions, traditional rulers act as arbiters over various issues including land disputes. If a dispute cannot be resolved by a headman, it could be referred to them and they can also reallocate land.

Many studies have revealed that title registration is not the only solution to increase tenure security for land development (ibid). Therefore, the documentation of customary land has been proposed to be a right of traditional leaders; it has also been held to be sacrosanct for traditional leaders to document their practices. Registration of customary land is not new; studies reveal that as early as the 1980s, chiefs were issuing farm permits (Mulolwa, 2002). Coming from the understanding that the formal legal system recognizes customary law, it follows therefore that nothing done under these auspices, unless repugnant to natural justice, can be said to be illegal (Subordinate Court Act Cap 28, s16). Similarly, the Lands Act (Cap 184, s7 (2)) provides – as far as is relevant to this discourse – that:

Any such holding under the customary law applicable to the area in which a person has settled or intends to settle shall not be construed as an infringement of any provision of this Act or any other law except for a right or obligation which may arise under any other law.

Therefore, it can safely be adduced – in line with the provision above that if the custom in the area where one has settled is issuance of a customary land document, then it is adequately covered by law. However, the last part of the quotation above gives an exception “for a right or obligation which may arise under any other law.” The law that comes to the fore is the Lands and Deeds Registry Act (Cap 185, s4 (1)) which provides:-

Every document purporting to grant, convey or transfer land or any interest in land, or to be a lease or agreement for lease or permit of occupation of land for a longer term than one year, or to create any charge upon land, whether by way of mortgage or otherwise, or which evidences the satisfaction of any mortgage or charge . . .must be registered . . . in the Registry or in a District Registry if eligible for registration in such District Registry

Do customary land documents fall within the ambit of this provision to require registration with the registrar? In order to answer this question, there is need to appreciate the focus of this law. Section 2 offers the interpretation of terms used in the Act. Cardinal to our discourse is the interpretation assigned to the “lands register,” which is held to mean the register referred to in paragraph (a) of section 9; the said sub-section provides as follows:-

9. The following registers shall be kept:

(a) a register of documents relating to land not subject to customary title2, other than documents referred to in paragraph (b), called the Lands Register

Another interesting provision relates to section 28 which provides:-

Nothing in this Part contained shall affect any concession or grant of land or any interest in land heretofore or hereafter made by any chief or any power of attorney or instrument or document of procuration heretofore or hereafter granted by any such chief

2 Emphasis ours


From the citations, it can be noted that this law does not affect customary land or any interests in that realm. Therefore, there is no obligation that arises under this law to require customary land documents to be registered for them to be valid and legal.

However, some of those interviewed (9%) felt that in the absence of a legal framework explicitly providing for customary land documents, they remain legally worthless. Be that as it may, the same percentage was quick to intimate that these documents are tenable and ‘legal’ within the spectrum of customary land and not outside its tenets.

High court judges were in the fore of assuaging that these documents can be admitted into evidence as long as they met the admissibility procedure (11%). A few noted that since they are not legal in the first place, they cannot be meant to sway the court’s decision. Those judges, who indicated admitting such documents into evidence, said that these documents could be helpful in determining the case. Another opined that they would be useful to show the true owner of the land in dispute.

However, when called into evidence in a matter of one with a formal title, the responses indicate a mixed approach. In the celebrated case of Makwati versus Chieftainess Nkhomesya (Lat/60/97), the court indicated that a title deed, entitled the possessor to the exclusion of all others in the enjoyment of land as it is proof of ownership and prevents all adverse claims. This is the tenor and spirit of the Lands and Deeds Registry Act (Cap 185, s33) where it provides that:

A Certificate of Title shall be conclusive as from the date of its issue and upon and after the issue thereof, notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the President or otherwise, which but for Parts III to VII might be held to be paramount or to have priority; the Registered Proprietor of the land comprised in such Certificate shall, except in case of fraud, hold the same subject only to such encumbrances, liens, estates or interests as may be shown by such Certificate of Title and any encumbrances, liens, estates or interests created after the issue of such Certificate as may be notified on the folium of the Register relating to such land but absolutely free from all other encumbrances, liens, estates or interests whatsoever.

However, this possession must not be negated by fraud, as this will render the title void. In the case of Siwale v. Siwale (SC 1999) in an appeal from the High Court over the decision of refusing the appellant’s application to be included on the title of the land which formed part of the estate of the deceased’s father, the Supreme Court held that not consulting one who had an interest on the land was fatal. In this particular case, one brother went ahead and converted the landholding from customary tenure to leasehold tenure, without consultation of the other siblings. In arriving at the decision, the court took into consideration the fact that the other siblings were registered under the customary land holding as interested parties at the ‘Isunda’ and that they were supposed to have been consulted before the conversion. Another case with a similar result is the case of Village Headman Mupwaya v. Mbaimbi (SCZ/41/1999) where the Court ruled that failure to consult any person whose interest may be affected by the grant as required under s3(1)(4)( c) of the Lands Act was fatal. It is therefore in the consultation process that customary land documents can be used as proof of ownership and support for the claim. Additionally, if the matter goes to court, and non-consultation is invoked, the court can then admit the document to recognize the claim. In the case of Still Waters Farm Ltd v. Mpongwe District Council (SC App.90/2001), the appellant company challenged the Lands Tribunal’s decision to refuse granting the land to the company as it had acquired the land secretly. It may be interesting to note that in this case, a letter from the chief was admitted into evidence and the court followed the precedent set down in Siwale v. Siwale.

The courts have admitted customary documents in various other cases. In the case of Chief Nyamphande v. Tembo and Others (Unreported), the court has admitted these documents to evidence the claim to land. Similarly, in Mukelebai v. Widmaier (SC App 116 1995), the court was ready to admit these documents, as can be gleaned from the portion of the judgment where the court concluded that


the plaintiff had failed to satisfy the Court whether verbally or by documents that the land given to him in 1975 by the late Litunga included Lot 6020/m, now occupied by the defendant. Additionally, in Chenda v. Phiri & Anr (Lat/80/98) the court found that the appellant had an interest on the land as his name was in the village register. In arriving at this decision, the court established and satisfied itself, after it moved to the land in dispute, that the appellants for a long period had an unequivocal and undisturbed enjoyment of the land; further, the court gave recognition of the procedures of registering interest in customary areas. The tribunal adjudicated that the certificate of title was fraudulently obtained and declared it null and void.

As pertains to the use of customary land certificates, this documentation leads to security of tenure and gives a purpose for one to develop the land without any fear of being dispossessed of the land. Mulolwa (2006) intimates that recording of customary rights will contribute to the security of tenure, especially against eviction and deprivation. The registration should preferably be uniform; however it should cater for the recording of various tenure regimes on tribal level. Smith (2005) on security of tenure writes:

Tenure security depends on a host of both objective and subjective factors, including the clarity with which rights and obligations are defined; the quality and validity of property rights records and whether or not the state guarantees them; the precision with which boundaries are demarcated; the likelihood that rights will [not] be violated; and the ability to obtain redress by an authoritative institution in such cases, along with the assurance that whatever measures that institution decides are deemed appropriate and can be enforced effectively. Because of the absence of recording, state guarantee and land administration institutions, security of tenure in customary systems is often used with reference to the certainty, duration and full rights of robustness of rights.

Therefore, documentation will lead to strengthening of customary tenure as it has remained elusive and evolving since independence. In general customary systems provide sufficient security as long there is no or little interference with the outside world.

All stakeholders agree that the debate on the legality of customary land documentation is raging and that it will not end soon without a legal framework put in place. It was discovered that the legality of these documents comes from an unwritten law and the understanding that for customary land to be legitimate, it need not be written. It was observed that for this debate to halt, there is a need for the enactment of a legal framework that will spell out the legality of these documents. It is only needful that legislation be enacted to support these documents.

However, without recourse to an enactment of a new piece of legislation, others insinuated that review of current laws and the enactment of the Land Policy will be enough to formally ‘legalize’ the documents. A number of legislation were cited for review among them, the Lands Act (Cap 184); the Lands Policy (2016) and the Deeds and Registry Act (Cap185). It was felt that once these are reviewed, and amendments made to them, it would make it easier to recognize the registration of customary land and make it fit within the existing legal framework.

The Deeds and Registry Act (Cap 185) provides for the registration of titles and other miscellaneous documents. According to sections 4 and 5, every document purporting to grant, convey, or transfer land or any interest in land for a longer term than one year must be registered. It can be adduced that these customary documents actually intend to confer this interest in land for a lifetime and in perpetuity of the grantee. However, the same piece of legislation spells out the nitty-gritty that is supposed to be met before the land is registered. The Act provides for the document lodged for registration to describe the land by reference to a diagram, plan, or any description of the land which should be approved by the Surveyor General. It therefore follows that if these documents are exposed to this stringent measure, they will fall short as they sometimes have diagrams and sometimes not. In Petauke District, in Sandwe, Nyamphande, and Mumbi Chiefdoms, it was discovered that some traditional land holding certificates have maps/diagrams. However these do not include the stringent procedure outlined in the Deeds and


Registry Act. In Ndake Chiefdom in Nyimba District, the customary documents being issued are not accompanied by maps.

Be that as it may, the stringent requirements for registration have been cited as a challenge rather than a form or standard that assists in securing tenure (Lands Policy, 2016). As a result, the current legal framework may need to be relaxed.

The Draft Land Policy provides for the government’s intention to introduce a system for the registration of customary land interests in order to guarantee security of tenure for customary ownership. This policy further suggests the issuance of a customary certificate which could be issued by the chief or a customary land committee, which is meant to provide for an avenue that should ensure for an equitable recognition and protection of customary land rights and put it as equal to leasehold tenure. The policy further provides for this registration to enable customary land to be subject to planning controls.

This policy further urges the Commissioner of Lands to recognize customary land titles administered by traditional leaders. More so, it is foreseen that once these documents are recognized, they will be transferable through mortgage, lease or sale according to market values and regulations. The lack of diagrams and plans from the traditional leaders is as a result of absence of maps and local surveys diagrams to guide decision making at this level of customary land administration, as there are no up-to-date maps at village or chiefdom level (ZLA, 2016). Beyond this, there is no agreed standard format for customary documentation.

Zambia Land Alliance, in a Shadow Policy (2016), intimates that there is now need for policy measures to be put in place that will recognize customary tenure fully. The shadow policy posits that policy measures should aim at developing a legal framework and guidelines that would standardize and ensure good governance of customary tenure. The Shadow Policy further supports the issuance of customary land holding certificates that will confer ownership and control over land.

The majority (76%) of the interviewed stakeholders felt that there is more that needs to be done to standardize and legitimatize customary documents. One-third hinted that traditional leaders should continue issuing out these documents, but have their capacity built and strengthened. The main reason for wanting traditional authorities to lead this process is that they have no bureaucracy and hierarchy that can take a long time to issue out the document as this will be time efficient. In the instance of Chief Ndake in Nyimba District, the research discovered that from application to issuance, it takes an average of less than three months for one to receive the document. Another reason given was the cost effectiveness that is affordable to the economic capacity of applicants at village level. The respondents further felt that the cost charged for leasehold tenure is way beyond their economic ability; as such they expressed the fear that once government departments come into the issuance process, the bureaucracy and costs will lengthen and rise respectively. Mulolwa (2006) notes that an important disadvantage of formal titling systems is their huge costs. Such systems are definitely not benefiting the poor; they cannot afford to register for titling in general. The fees to be paid by the right holders should be in line with the value of rights, which are to be secured. Fourie (2002, cited in Mulolwa, 2006) claims that many African land titling systems are not pro-poor and instead support the needs of investors and the elites.

However, two-thirds of the respondents indicate that it is not enough to let traditional leaders alone issue out these documents, citing lack of capacity, management, personnel, and skills to run such a mammoth task. They suggest the need to integrate traditional leaders and government departments. Examples cited are the local authorities and line ministries involved in the management of land and traditional leadership.

On the structure, information, and format that could shape the customary documents, respondents indicated a need to standardize these documents across the board. Most were quick to point out the features in the title deeds to be replicated on the customary documents with minor alterations.


However, on common features, it was felt that each chiefdom or cultural setting should adopt and maintain its logo or emblems with the inclusion of the standard emblems and signs.


3.0 CONCLUSIONS This research looked at the legality of customary land documents within the existing formal legal system. This arises from a background of traditional leaders issuing out documents to protect their subjects and land without a formal legal enactment giving them this mandate or jurisdiction.

The three principle questions of the research on legality, evidential, and probative value, together with the nexus of decision-making when handling cases involving customary documents have been answered. The research findings suggest a consensus on legality of customary land as it is adequately provided for in existing laws. Additionally, it was discovered that overwhelming consensus exists on the powers of traditional authorities to document their practices, this was held as a power of every ‘sovereign’ authority.

However, agitation and discomfort exist as regards the legality of customary documents. Though the majority posited that these documents are legal, they still felt that to end all speculation and debate, there is need to legislate and concretize their legality. This position resonates in tandem with those who opined that they were a nullity at law. However opinions differed on understanding whether there is only a need to review the current laws like the Lands Act and Lands and Deeds Registry Act to provide for these documents, or a need to enact a new piece of legislation that will cater specifically for this.

The second limb of the research was answered in the affirmative by adjudicators when they said that they can accept and admit these documents in evidence, and that depending on circumstances of the case, they may be part of the evidence to sway their decision. This was in direct contrast with the traditional court justices who indicated that possession of a customary document was enough proof to negate any other claim.

Moreover, the research, through case law, proved that courts have admitted these documents into consideration when adjudicating upon matters of customary land. Further precedents indicate that, when a customary land holder with proof of documentation, shows the court of their claim, even those with statutory documentations lose.

The study however indicates that without a clear standardized format and procedure of issuance, these efforts remain unrecognized, not until when standardization will be hard across the board. Further, the office which could be mandated to issue these documents needs to be identified and clearly be given the mandate and the capacity to ensure that this is done in a timely and credible manner.

3.1 LIMITATIONS Although our study could have shown the general feeling and overview of the legality of customary documents from the legal fraternity, the results could be potentially affected by some limitations. Common to this is the number of the sample population that was picked that could not be fully representative of the legal field as whole and other stakeholders who may share an interest in the question at hand. However during the selection criteria, all areas were considered and covered. In order to fully unpack the results, we recommend a more comprehensive approach geographically and suitable timeframe to conduct an in-depth research.

The second limitation can relate to the bias that the respondents have towards customary land and traditional leadership. This could affect the case from the traditional leaders’ perspective, who would want to shield themselves from criticism as concerns the documents they issue and perpetuate there


land alienation powers and traditional practices. Conversely, the negative connotation associated with customary land tenure and perceived authoritarian traditional tendencies could undermine these efforts.

Thirdly, the review of case law was restricted to a few reported cases obtainable either online or through law reports and those recommended by the respondents. This may have left a whole world of ironically, undocumented court decisions that could provide greater support or undermine the results of this study.


REFERENCES

WORKS CITED Kaima, R.H. (2011). Mozambique Study Tour Report. Zambia Land Alliance.

Knight, R. (2010). Statutory Recognition Of Customary Land Rights In Africa An Investigation Into Best Practices For Lawmaking And Implementation. Development Law Service FAO Legal Office.

Machina, H. (2008). Women’s Land Rights In Zambia: Policy Provisions, Legal Framework And Constraints. Conference Presentation, Harare, Zimbabwe.

Mudenda, F.S. (2006). Land Law. School of Law, University of Zambia, Lusaka .

Mulolwa, A. (2002). Integrated land delivery, Towards improving land administration in Zambia, Delft University Press, Delft.

Mulolwa, A., & Van Asperen, P. (2006), Improvement of Customary Tenure Security as Pro- poor Tool for Land Development – A Zambian Case Study. 5th FIG Regional Conference, Accra, Ghana, March 8-11, 2006.

Smith, R. (2005), Land Tenure and Farm performance in Zambia’s Southern province. University of London.

Van der Molen. P. (2005), Capacity Development for Land Administration,10 Years Anniversary Polytechnic of Namibia, Windhoek.

Van der Molen, P., & Lemmen, C. (2004). Unconventional Approaches to Land Administration: A Point Of View Of Land Registrars And Land Surveyors, Proceedings Of Expert Group Meeting 7th FIG, Commission Frederiksberg.

Zambia Land Alliance. (2013). Options and Policy Paper Presented to the Parliamentary Select Committee on Lands, Environment and Natural Resources.

Zambia Land Alliance. (2015). IEC Material/ Poster: Step by Step Procedures of Obtaining Customary Land in Chief Ndake’s Chiefdom.

Zambia Land Alliance. (2016). Land Shadow Policy.

CASES STUDIED Makwati versus Chieftainess Nkhomesya (Lat/60/97)

Siwale versus Siwale (SC 1999)

Village Headman Mupwaya versus Mbaimbi (SCZ/41/1999)

Still Waters Farm Ltd versus Mpongwe District Council (SC App.90/2001)

Chief Nyamphande versus Tembo and Others(Unreported

Mukelebai versus Widmaier (SC App 116 1995),

Chenda versus Phiri & Anr (Lat/80/98)


Lumanyenda v Chief Chamuka ZR 194/SC 88/89

Roberts v Bandawe and 24 Other (Lat 20/99)

Banda v Tembo (SC 204)

Nkani Mwanza v Sambo R.P, Lusaka Urban District Council (SC 16, 2000)

William David v Attorney General (HP/668 of 1989)

Patson Siulapwa v Tales Namasiku (1984/HN/CA/16)

Saul Kureba v Ganizani Goma (1995)

LEGISLATION STUDIED Botswana Tribal Act 1968

Chiefs Act Chapter 287 of the Laws of Zambia

Draft Land Policy, 2016

The Lands Act Chapter 184 of the Laws of Zambia

The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia

Mozambique (Land Law 1997)

Tanzania (Village Lands Act 1999)

Urban and Regional Planning Act (2015),

SITES VISITED African Coalition Against Land Grabs. www.acalag.org. Checked on 26/07/2016

TGCC Success Story: Supporting Transparent Land Administration in Zambia. www.usaidlandtenure.net/documents/tgcc. Viewed on 26/07/2016 at 12:15am

www.landmatrix.org/en/get-the-detail/by-target-country/zambia. Viewed on 21st February,2017

http://www.acalag.org/

http://www.usaidlandtenure.net/documents/tgcc

http://www.landmatrix.org/en/get-the-detail/by-target-country/zambia


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