Customary Land titling and inter-generational wealth transfer in Malawi: Will secondary Land rights holders maintain their Land rights?

Land Use Policy 81 (2019) 680–688

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Customary Land titling and inter-generational wealth transfer in Malawi: Will secondary Land rights holders maintain their Land rights?

T

Sane Pashane Zuka University of Malawi, The Polytechnic, Department of Quantity Surveying and Land Economy, P/Bag 303, Blantyre 3, Malawi

ARTICLE INFO

ABSTRACT

Keywords: Malawi Land reform Primary land rights Secondary land rights Intergenerational wealth transfer

Malawi promulgated Customary Land Act, 2016, as a step towards achieving triple objectives of land tenure security, efficient land-use and improved land market. Customary land, however, consists of multiple and competing land rights. Mobilizing the concept of intergenerational wealth transfer, this paper explores the extent to which secondary land rights are going to be preserved within the new law. The paper explores three questions namely: what provisions has the new law provided for registration of secondary land rights? How is the new law shaping motivations for registration of secondary land rights? What are the likely outcomes of the new law on land tenure security of secondary land rights? Employing mixed research methodology, the study findings demonstrate that the assumption that land titling will protect secondary land rights is grossly misplaced. Instead, land insecurity among secondary land rights holders may become more visible and worse than before. This is largely so because the new law has failed to respond to the lineal logic of customary land rights embedded in lineal kinship.

1. Introduction This paper undertakes a critical review of Malawi's new wave of land reform as a tool of achieving customary land tenure security, efficient land use and promotion of the land market. Land titling has particularly been presented as a solution to land-rights inequalities and tenure insecurities the country has experienced since colonial rule (Peters and Kambewa, 2007; Peters, 2010). Customary land, however, consists of multiple and competing land rights that are affected differently in land tenure reform. This paper investigates the extent to which current customary land registration as espoused in the 2016 Malawi Customary Act will promote the security of secondary land rights holders. Generally, formal discourse on land reform in several African countries does not only doubt the ability of customary land tenure systems to undergo autonomous evolution into private property arrangement, but also to safeguard the land rights of the less powerful community members (see Agarwal, 2003; Fitzpatrick, 2006; Demsetz, 1967; Corse, 1960). This stance was the driving force behind adoption of “static” oriented land tenure reforms in over ten African countries by 2005 (SADC Land Reform Support Facility, 2008). The premise that formal customary land arrangements result into secure land tenure is striking (de Soto, 1989; Scott, 2008; Demsetz, 1967; World Bank, 2013). Yet, this premise has often been expounded in a neoliberal normative approach rather than interrogating the

empirical dynamics of land use under customary tenure. While registration of land parcels is seen as a tool to safeguarding individual land rights (see Agarwal, 2003), not all individuals enjoy equal land rights under customary law. For instance, Chinsinga et al. (2014), revealed that in Malawi women and other vulnerable groups of people suffer disproportionately from illegal land appropriation and community displacement. Increased literature globally also questions whether customary land formalization is a solution to safeguarding land rights for everyone (see Platteau, 1996; Jackson, 2003; Abdulai and Domeher, 2011; Lipton, 2009; Boone, 2007; Fitzpatrick, 2006). This is so as changes to land tenure modify the range of land rights that individuals within a particular land tenure can claim. Land reform in Malawi is, therefore, implemented within these unsettled debates. The question about how current land reforms are affecting secondary land rights holders remains particularly a peripheral question. This is the gap that this paper aims to fill. Three questions will be explored in this paper namely: what provisions has the Customary Land Act, 2016 provided for the titling of secondary land rights? How is the new law shaping motivations for the registration of customary land parcels with different land rights? And, what are the likely outcomes of the new law on security of secondary land rights holders? Secondary land rights describe all land rights that do not fall into the culturally defined descent practices of property rights transfer

E-mail address: [email protected]. https://doi.org/10.1016/j.landusepol.2018.11.039 Received 20 April 2018; Received in revised form 20 November 2018; Accepted 21 November 2018 0264-8377/ © 2018 Elsevier Ltd. All rights reserved.

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(Meinzen-Dick and Mwangi, 2008). Platteau (1996) defines these rights as characterized by secondary claims to land use. In Malawi, these rights include land rights accorded to women under virilocal patrilineal marital arrangement, children living with divorced women in patrilineal societies, unmarried men including married chiefs living under matrilineal societies, and men under matrilineal uxorilocal marital arrangement. One common feature of secondary land rights is that they are temporary land access rights. By consolidating all the bundle of land rights in land into a single individual, land reform therefore changes how these rights can be negotiated and allocated. On the overall, the study’s findings reveal that registration of customary land in Malawi is unlikely going to secure the rights of secondary land rights holders. In this article, I argue that this challenge largely stems from the fact that the new customary land law inherently fails to recognise that the principles and practices of customary land tenure are strongly embedded in lineal kinship and marital practices. Thus, the task of achieving equity and security objectives for secondary land rights remain not only innately futile, but also bound to face poignant resistance from the custodians and assemblages of cultural institutions.

insurance (Kohli, 2004). IWT may be in the form of human capital (resources provided to children to enable them to grow, learn and socialize) and physical capital (transfer of real physical assets). This paper is based on the transfer of physical capital. In Malawi, land is the dominant physical capital that is available to most rural farming households and is transferred from one generation to the other through kinship ties. Generally, agrarian households consider IWT critical for private household wealth accumulation, poverty reduction and economic growth (Peter, 2005; Quisumbing, 2009). IWT is, however, not a neutral process, but a culturally based prescription. In addition to being selective of the heirs that benefit from wealth transfers, the dynamics of IWT varies from society to society. Furthermore, IWT is not only based on expectations of reciprocity and altruism, it is also deeply rooted in the existing culture (Suzanne et al., 2007; Kohli, 2004). Several studies have revealed that IWT in different societies reflect existing preferences and pattern of transferring wealth to children (Quisumbing, 2009). To this end, changing land tenure which is established on a highly normative system of physical capital transfer have impact on not only the pattern but also the scale of IWT. This is so as different parents exhibit different preferences for resource transfer. To this end, preferences of IWT as reflected in the customary land tenure systems will have an impact on process of customary land registration. By drawing insights from the IWT, this paper position land titling as part of the process of passing family wealth to the next generation. In this way, the study directly deals with the theory of private property that conflicts with the practices of customary land tenure. The concept of IWT particularly allows in-depth understanding of the incentives that guide custodians of the customary land rights to grant land registers to the next generation, including secondary land rights holders. Beyond that, IWT allows understanding of the economic and social interests that are shaping narratives and discourses over formalization of secondary land rights in Malawi (see also Adam and Dercon, 2009).

1.1. Organization of the paper In the following section, I define the concept of intergenerational wealth transfer which provides the theoretical framework for understanding the basis of the paper’s argument. This is followed by theoretical and empirical description of the land reform. A background section to Malawi’s land reform interventions and experiences follow thereafter. This is followed by a section on methodology and then findings which highlight dissonance between the principles of land titling and intergenerational wealth transfer as established within customary land tenure systems. 2. Theoretical framework

2.2. Customary land reforms: theoretical and empirical perspectives

2.1. Intergenerational wealth transfer and property transfer

Customary land reform is a complex process with various forms, approaches and outcomes. Historically, formalization of land has been associated with land reform initiatives concerned with distribution of land to the poor and landless (Russell, 1971) to re-organization of land tenure arrangements (Nkwae, 2006). Lipton (2009: 124) defines land reform as "legislation intended and likely to directly redistribute ownership of, claims on, or rights to current farmland and thus to benefit the poor by raising their absolute and relative status, power, and income, compared with likely situations without legislation". Land reforms with redistribution objectives are generally referred to as classic land reforms while those that change land tenancy arrangements are referred to as new wave of land reform (Lipton, 2009). Land distribution reforms have been implemented in several countries such as Zimbabwe, South Africa, Mexico, Bolivia, China and Russia (Lipton, 2009). While the main objective of the classic land reform was to distribute land to the landless, the new wave of land reform is concerned with improving security of land tenure rights. Generally, tenancy reforms rarely change existing land holding distribution (Adams and Howell, 2001; Lipton, 2009). In Malawi, land reform takes the form of the latter with land titling as its major element. This paper focuses on this type of land reform. Land titling can be defined as registration of land parcels that are legally recognised and enforceable. It involves registration of land parcels of different land users and their rights to use, rent out, sell, mortgage, or give away (Lipton, 2009). Theoretically, land titling is a process to create private property tenure rights arrangement which confers on the right holders inalienable and exclusive entitlement (de Soto, 1989). Establishment of private property right is perceived as evolutionary in response to rising land values as population grows (Lipton, 2009; Demsetz, 1967; Amanor, 2012). Generally, private property arrangement has received a lot of support from economists

Research on the relationship between customary land reform and its outcomes has had a troubled history in Africa. Neoclassical and rational institutionalist theories argue that private arrangement provides secure land tenure rights, promote productivity and facilitate financial capital formation (de Soto, 1989; North, 1990; Acemoglu et al., 2005). Sociologists and anthropologists on the other hand argue that social capital embedded in customary land effectively provide tenure security in agrarian societies (Amanor, 2012; Capoccia, 2016). The empirical evidence for both schools remains inconclusive as positive-sum and zerosum outcomes are experienced under both systems (Otsuka and Place, 2001; Lipton, 2009; Obeng-Odoom, 2012). Ambiguity between land titling theoretical claims and its empirical outcomes has largely been explained by the fact that customary land consists of a web of interests, encompassing access, use, control and alienation/disposal rights. Rather than being individually owned, there are multiple interests in land that are embedded in social relations and identity (Meinzen-Dick and Mwangi, 2008; Lipton, 2009). Formalization of customary land cuts this web of interests by consolidating all bundles of rights into an individual land holder. While bundle of rights illuminates the explanations for multiple claims in customary land, it does not explain why negative outcomes are experienced under customary land tenure and not in private property rights arrangement (Meinzen-Dick and Mwangi, 2008). I argue that the concept of intergenerational wealth transfer (IWT) and its link to customary land use and kinship relations provides an analytical framework for understanding this puzzle. IWT is a practice in which family wealth is passed on from one generation to another (Quisumbing, 2009; Suzanne et al., 2007). It is considered as a means of distributing resource across the family generations, maintaining strong family bonds and providing family welfare 681

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who view the arrangement as providing vital mechanisms for internalizing negative externalities associated with land use. Neoclassical scholars particularly posit that private property ownership positively influences land investment through facilitating access to loan finance (Demsetz, 1967; Lipton, 2009; Williamson, 1996). To this end, these scholars postulate that land users will be motivated to register their land parcels as a means to achieving increased land investment and capital formation. However, there are costs to establishing and protecting private property interests and willingness to establish, recognise, respect and enforce private property interests. Establishing private property rights is only possible if the benefits outweigh the costs (Fitzpatrick, 2006; Demsetz, 1967). Land titling is, therefore, theoretically justified based on three main reasons. Firstly, titling is a mechanism to internalize resource, conflict and resource dissipation externalities (Fitzpatrick, 2006). It is based on the view that titling increases enjoyment of benefits from titled land which motivates land owners to take in more costs for caring and investing in land (Demsetz, 1967; Amanor, 2012). Secondly, land titling is perceived as providing tenure security to land rights holders (de Soto, 1989; Scott, 2008). This argument is based on the understanding that titling ensures clarity of land boundaries and ownership. Lastly, land titling is seen as promoting private investment. There is thus a strong argument that land titling promotes economic development through encouraging land investment and capital formation (Williamson, 1996; Lipton, 2009). The benefits of private property rights notwithstanding, several studies have cautioned against believing the magic proof of private property arrangement in achieving land security, equality and increased investment. It is argued that land reforms based on private property arrangement pay less attention to the operation of customary land tenure and consequently fail to achieve set out objectives (Sjaastad and Bromley, 1997; Chang, 2011; Williamson, 1996). For instance, Lipton (2009) documents that reality in most developing countries belies theoretical expectations that population growth and rising land values result in the adoption of private property rights (see also Williamson, 1996). Several authors have also contested the touted view that land titling increases land investment. For instance, Bruce and Migot-Adholla (1994) argued that in Africa rather than increasing land security, productivity or access to credit, land titling increases land insecurity. The two authors argued that multiple land rights layers distort the gains that are theoretically related to private tenure arrangement (see also Abdulai and Domeher, 2011). Likewise, different studies have revealed that informal customary land tenure systems may provide higher investment incentives than formal private tenure arrangements (Otsuka and Place, 2001; Sjaastad and Bromley, 1997). Williamson (1996) specifically highlighted that without complementary enforcement mechanisms, land titles have been unable to protect the land rights of the poor people as wealthy and powerful individuals circumvent existing rules. According to Fitzpatrick (2006), while land titling provides a means to addressing externality, the process of formalizing property titles may itself create externality in form of social conflict. Lipton (2009) also argues that land titling for risk averse poor groups potentially increases land distribution inequalities as the rich elite control the tilting process in their favour. Thus, the effect of land titling on investment and land security remains highly contested.

period established a dual land tenure system where few large-scale estate farmers owned large estates while many subsistence farmers scrambled for small arable land parcels. The 1951 Land Ordinance specifically classified land into public, private and customary land categories. It is not surprising that land inequality was in 1915 one of the triggers of the historic John Chilembwe’s rising against white colonial rule (Kanyongolo, 2008; Vail, 1984). Paradoxically, rhetoric for increased land rights that characterized the struggle for independence in 1964 not only failed to deliver its promises, it also augmented existing land rights inequalities. The promulgation of the 1967 Land Act and 1972 Land Acquisition Act particularly orchestrated elite farmers’ annexation of customary land (Kanyongolo, 2008). Thus, white domination was substituted with fellow black domination. Defined as land which is held, occupied or used under customary law (Section 2 of the Land Act, 1965), customary land was essentially a reserve from which private land tenure could be created. For instance, between 1979 and 1989 the number of private farm estates increased from about 1200 to 14,671 covering one million hectares of fertile arable land (Chinsinga, 2008). This situation resulted in a highly skewed distribution of land with 1.8 to 2 million subsistence farmers cultivating less than 1 ha of land by 2002 (World Bank and GoM, 2006). Efforts to privatize customary land in Malawi can be traced to as early as 1967 with the promulgation of the Registered Land Act (Cap 58:01) and the Customary Land Development Act (Cap 59:01). These pieces of legislation were aimed at establishing a gradual process of granting land title to customary land holders, a policy goal that was clearly spelt out in Parliament by the then Prime Minister of the country, Dr. Hastings Kamuzu Banda; Under our present system of land holding and land cultivation, no one, either as an institution or as an individual, will lend money for developing our land because our methods of land holding and cultivation are uneconomic and wasteful. They put responsibility on none. No one is responsible here because no one holds land as an individual. Land is held in common. They say everybody’s baby is nobody’s baby at all. We have to put a stop to this…’ (Hansard, Proceedings of the Malawi Parliament, 4th Session, 1966-67, 403) The Customary Land Development Act (Cap 59:01) was enacted to provide a legal framework through which customary land would be converted to freehold status under a Registered Deed of freehold title. However, implementation of this policy goal proved difficult and was quickly suspended. The project experienced high cases of land boundary related conflicts. The objective of achieving increased financial capital formation, investment and productivity was also hampered by the failure of commercial banks to recognize registered customary land as private property that can be used as collateral (GoM, 1999; Ng’ong’ola, 2009). Thus, Malawi’s 1960/70 s wave of land reform centered on promotion of agriculture through granting of private land title to progressive farmers (Peters, 2005; Chinsinga, 2008). In the 1980s, liberalism and structural adjustment provided the impetus for the pursuit of this policy goal (see also (Adams and Howell, 2001). Malawi lived with this silent land crisis until 1994/95 when political change to multiparty government invigorated popular demands for increased land rights. Thus, the current wave of land reform was born out of the 1990s citizens’ struggles to reclaim alienated land rights (Chinsinga, 2008). The formal process of land reform started in 1996 with the establishment of the Presidential Commission on Land Reform. Since then, the land reform process has been contentious, divisive and at times tumultuous. Malawi had its first Land Policy in 2002 but the process of putting in place a legal framework to guide policy implementation has taken over 20 years. During this process, land related Acts have been referred to Parliament two times after being passed due to unrelenting demands of key stakeholders such as rural subsistence farmers, gender activists and local chiefs. In general, there has been dissonance between the demands of customary land users and those of the policy making community. For instance, Customary Based Land

2.3. Land reform history in Malawi: principles, politics and consternations The question for a paradigm shift in customary land administration in Malawi can be traced to the colonial period when land tilting was largely reserved for white settlers while indigenous subsistence farmers enjoyed only usufruct rights (Chinsinga, 2008; Kanyongolo, 2008). During this period, the modernization school considered customary land tenure as primitive and promoted establishment of private land property rights (Demsetz, 1967, Course, 1960). Thus, the colonial 682

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Table 1 Summary of Respondents for the Study. District

Kasungu

Mzimba

Nsanje

Phalombe

Thyolo

Traditional Authority No. of villages No. of household respondents No. of FGDs No. of in-depth interviews with T/As No. of in-depth interviews with development leaders No. of interviews with CSOs No. of interviews with Government officials No. of interviews with Academia

Lukwa 9 57 3 3 2

Mpherembe 8 81 4 3 1

Mlolo 9 104 4 2 2

Nkhumba 9 126 4 2 1

Nsabwe 8 64 3 2 2

National /Local

6 15 3

Total 5 43 432 18 12 18 6 15 3

was set at 0.05, which gives a total sample of about 400 and 10% was added. The study selected every k-th household starting randomly from any point in the distribution of the household dwelling units. The number of respondents in each T/A was proportional to its population. The researcher also spent a period of three months in the field observing community life and at times attended community meetings organized by the local chiefs to sensitize the community on the new land laws. Qualitative methods allowed in-depth inquiry into several issues, including how land for farming was accessed, who is culturally recognised as owners of land, community perceptions on the new land law, their willingness to register their land and who in the family is entitled to register the land. These discussions focused on understanding the incentives for registering primary and secondary land rights holders. The household survey was used to quantify and describe the land tenure characteristics in the study areas. In this paper, formalization of land rights refers to the shift from using customary and unwritten rules to the use of state written rules. Thus, land rights are recognised and enforceable based on written records. Table 1 provides the summary of the respondents consulted.

Development Programme (CBLDP), which piloted the principles of the new land law hardly succeeded in its objective of easing the land pressure for the landless. CBLDP was moving households from districts of land pressure (Thyolo and Mulanje) to districts with less land pressure (Machinga and Mangochi). The underlying assumption of the programme was that people moving to the new areas will leave their land parcel in their former home thus easing land pressure. However, households ended up maintaining parcels in both their former and new homes. This situation was aggravated by social-cultural conflict between the migrating households and the host communities (Chinsinga, 2008; Ng’ong’ola, 2009; Sahn and Arulpragasam, 1993). 3. Methodology This paper is based on the data that was collected in 5 out of 28 districts in Malawi between February and June 2016. The districts included Mzimba, Nsanje, Phalombe, Thyolo and Kasungu North. Mzimba, Nsanje and Kasungu North are principally patrilineal communities while Phalombe and Thyolo largely practice matrilineal system of decent. The five districts were chosen because there is high land pressure (Phalombe and Thyolo), have more leasehold estates (Kasungu) and have strong patrilineal system (Mzimba and Nsanje). The five districts represent excellent cases for investigating the processes of formalizing secondary land rights. Thus, the study takes a comparative approach in investigating the impact of formalization of customary land on the security of secondary land holders in the matrilineal and patrilineal land tenure systems. This is important as in matrilineal-matrilocal society, contrary to the widespread view, women own land while men use their wives’ land or hold temporary land access rights (see Peters, 2010). This means that while in patrilineal society women generally hold secondary land rights, in matrilineal-matrilocal societies men are the ones that hold secondary land rights. The study adopted both quantitative and qualitative methods of data collection, which included individual interviews, focus group discussions (FGDs), participant observation and household survey. Interviews, FGDs and participant observation were conducted by the author while trained research assistants conducted household surveys. The study conducted 432 household surveys, 18 FGDs and 44 in-depth interviews. The participants in FGDs included subsistence farmers and local governance structures (Village Development Committees) while in-depth interviews were conducted with traditional leaders (12), community development leaders (18), civil society leaders (6), government staff from the Ministry of Lands, Housing and Urban Development (15) and academia (3). Two stage systematic sampling was used in selecting respondents for the household survey in which villages in each Traditional Authority (T/A) were sampled as primary sampling units and households as secondary sampling units. Selection of primary units was aimed at achieving geographical coverage. The total household survey sample size was generated by Israel’s (2009) statistical formula which is appropriate for calculating sample size where total population is known as was the case with this study (Appendix A). The level of precision (e)

4. Empirical findings 4.1. New and old land law: regime shift, contradictions and uncertainties The process of customary land reform has been characterized by a lot of mistrust between policy communities on one hand and the subsistence farmers on the other. According to government, customary land can be protected by according it private property rights. To this end, government’s aim is to register all customary land users into customary estate, defined as “any customary land which is owned, held or occupied as private land within a traditional land management area and which is registered as a private land under the Land Act” (Cap 58:01). This definition also featured in the definition of private land as “all land which is owned, held or occupied under a freehold title, or a leasehold title, or as a customary estate or which is registered as private land under the Registered Land Act” Cap 58:01). Thus, without differentiating the different contexts under which customary land is held, the reasoning is that all customary land users will register their land parcels under the single structure. The radical shift in the new law is the extent to which cultural norms have been shelved aside in favour of distributive justice presumed under private property rights. The challenges of replacing customary land tenure with private land tenure need to be gauged against the three sets of rights enjoyed under customary land tenure namely: access, ownership and control rights. An individual and household can either enjoy all, two or only one of the land rights. According to previous Malawi's Land Act of 1967, all land in the country was vested in the state and households legally held only user rights in perpetuity (GoM, 1967). The understanding was that customary land belonged to the whole community but was allocated to an individual in perpetuity and derived from continued occupation or use. Administration of customary land was delegated to the traditional 683

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chiefs on behalf of the President. De facto, households using customary land held ownership rights based on continued use. Suffice to mention that both customary land users and local chiefs did not see themselves as only holding land user’s rights in perpetuity. This was law on the books. On the contrary, customary land users saw themselves as holding land ownership rights as defined by their tradition (see Ng’ong’ola, 2009). The 2016 Customary Land Act makes all registered customary land part of private land to be transacted under the principles of private land. Unlike under customary land tenure, title holders of customary estates have absolute ownership, control and disposal rights. The new law has changed the way customary land will be managed as instead of only local chiefs and clan leaders, customary estates will also be managed by elected land committees. The new law has particularly created Customary Land Committees (CLC) chaired by the Group Village Headperson, Customary Land Tribunal (CLT) chaired by the Traditional Authority, District Land Tribunal (DLT) chaired by the District Commissioner and Central Land Board (CLT) chaired by the Resident Magistrate. The CLC will oversee land formalization and allocation of village land and it will be composed of six (6) elected individuals from within the community (at least three of whom should be women). CLT shall consist of six members nominated by the T/A and approved by the Commissioner (at least three of whom should be women). Within this arrangement, the interface of lineage access is blurred in preference of private land transactions. This shift is already registering increasing incidents of protests from several local chiefs and ‘elite’ individuals (see also Chinigò, 2016).

one of the study areas under matrilineal-matrilocal systems, “nkhani ya malo kuno ndi ya zikwanje, likatha banja malo palibe” meaning “despite what is done to improve the land, men lose land upon death of spouse or divorce”. While this is the norm, the study found that older men are generally allowed to stay as they are not expected to remarry, mostly at the demand of their children. While more women are guaranteed of their access to land upon death of spouse in patrilineal society, this is achieved at the expense of their freedom. If they want to maintain land user rights, they must get married to someone within the clan. If the woman has older sons, all land rights must be passed to her sons. Second level secondary land rights: This is a situation where an individual member of the household only holds access or user rights to land. It is experienced mainly by losers of first level secondary land rights holders i.e. unmarried, divorced and widowed individuals and their children. Findings from this study demonstrate that although this group of people have access to land for farming, they do not have a claim to land ownership and control rights. According to FGDs conducted, under both patrilineal and matrilineal system, second level secondary land rights are not given land to farm for life as they are expected to move out of the village at any time. In other words, these people do not have life time land rights. The following cases illustrate the complexity of secondary land rights encountered under patrilineal and matrilineal society: “My husband died some time back and left me with four children. My in-laws have been very good to me as they have allowed me to farm the land we used to farm with my husband. I will pass over this land to my son, when he is fully grown” “The land I am farming belongs to my sister, I was given this land upon returning back from my marriage. In this area, we follow matrilineal system where women inherit the land. They gave me this land to farm during this time, but I will give it back to my sister after I find someone to marry”

4.2. Levels of secondary customary land rights holders in the study areas Findings from this study demonstrate that secondary land rights in Malawi are experienced at different levels within the family/household unit, as explained below: First level secondary land rights: This is a situation where a member of the family, either a husband under matrilineal/uxorilocal or wife under patrilineal virilocal provisionally holds ownership of land rights. Male chiefs in matrilineal societies also fall into this category. Although they are culturally accorded temporary land rights through their partner, they are not accorded ownership rights. Under both systems, first level secondary rights holders lose access to their partners’ land upon divorce or death of spouse. However, loss of first level secondary land rights are more pronounced in matrilineal societies as men are culturally expected to go back to their natal home upon death of spouse. In patrilineal society, women have the choice to either remain, marry one of their late husband’s kinsmen or not to marry. If they choose to get married to another person outside their late husband’s clan, they are to leave their marital home and lose all user rights to land. Findings from this study reveal that while about 60% of men exercising land control in their matrilineal marriages lose access to their wives’ land on separation or divorce, about 23% of women under patrilineal society lose land user rights upon death of spouse. In the words of men from

4.3. Characteristics of land rights situation in the study areas Table 2 below provides a summary of the land situation in the areas where this study was conducted. Table 2 shows that areas included in this study display varying land holding characteristics. T/A Lukwa in Kasungu has the highest per capita land availability of 1.48 ha, followed by T/A Mpherembe in Mzimba (0.73 ha), T/A Mlolo in Nsanje (0.58 ha), T/A Nkhumba in Phalombe (0.33 ha) and lastly T/A Nsabwe in Thyolo (0.28 ha). The table also shows that Mzimba has the lowest proportion of households cultivating less than 1.0 ha (19.4%), followed by Kasungu (23.8%), Phalombe (32.4%), Nsanje (54.0%) and Thyolo (80.7%). As there is a direct correlation between household land holding size and household poverty, poverty levels are assumed to be high in Thyolo. According to World Bank and GoM (2006), households cultivating less than 0.5 ha constitute a larger proportion of the core poor groups. Per household land reveals the impact of large-scale commercial estates that were

Table 2 Characteristics of Land Rights in the Study Areas. Source: Household Survey Traditional Authority

Lukwa

Mpherembe

Mlolo

Nkhumba

Nsabwe

Correlations with T/A P-value

Average per capita land in ha % of household cultivating less than 1.0 ha % household with land owned in the name of husband % of individuals without right to own land % of widows with right to own land in their name % of widowers with right to own land in their name % of respondents willing to register their land parcels % of married women with land in their name % of women having control over land

1.48 23.8 73.4 27.9 44.4 95.4 79.8 26.6 21.1

0.73 19.4 85.5 35.3 11.0 99.0 68.0 14.5 18.0

0.58 54.0 79.9 20.6 70.6 98.2 76.6 11.1 18.7

0.33 32.4 14.1 22.5 92.3 7.7 90.0 85.9 47.7

0.28 80.7 17.9 16.5 92.0 6.0 81.8 82.1 41.4

0.000 0.013 0.000 0.000 0.021 0.000 0.000 0.000 0.000

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established in Thyolo and Kasungu districts during colonial and oneparty rule respectively. Table 2 also reveals that males own over 70% of the land in their name in patrilineal areas. Only 14.1% and 17.9% males own land in their name in Phalombe and Thyolo respectively. According to field interviews conducted, most land that is owned by males in matrilineal societies is mainly the one that has been bought by the family. The study found that about 20% and 47.7% of the married women in patrilineal and matrilineal societies respectively have control over land. The findings of this study agree with existing studies which show that women do not enjoy equal land control rights even where they have land ownership rights (see Jackson, 2003; Plateau, 1996). However, contrary to the view that increased females’ control over land will positively affect agricultural productivity (see Agarwal, 2003; Berge et al., 2014; Djurfeldt et al., 2018), this study finds no relationship between female control over land and productivity under both matrilineal and patrilineal societies (p = 0.003). The findings also reveal that in all areas very few secondary land rights holders have the right to own land in their name. For instance, only 6.0% and 7.7% widowers in matrilineal-matrilocal societies in Nsabwe (Thyolo) and Nkhumba (Phalombe) respectively own land in their name. Under patrilineal societies, the proportion of widows who are secondary rights holders is slightly higher being at 14.5% and 11.1% in Mpherembe and Mlolo respectively. While practices of land tenure can explain this variation, high land pressure in these areas can also have a significant effect on granting land rights to secondary land rights holders. Per capita land is very small in Nsabwe (0.28) and Nkhumba (0.33). Table 2 also reveals that despite more proportion of married women without land ownership rights in patrilineal societies, the proportion of respondents willing to register their land is low compared to matrilineal community.

(virilocal/patrilocal). The husband is allocated land for farming by his parents or clan leader and land is transferred from fathers to sons. Under this system, the wife accesses land through her husband. Other alternative and hybrid marriage systems have also risen from the two systems. Under matrilineal systems, the husband can request the wife to live with him at his home. This is locally known as Chitengwa and is acceptable where the husband has responsibility in his family lineage (Holden et al., 2006). It should be noted, however, that under such a situation both the husband and wife do not culturally own land in the husband’s village as land belongs to the female members of the husband’s lineal family. In time of abundant land, this requirement is not emphasized as everyone has adequate land to farm. However, in times of land shortage, culturally accepted land claimants are given priority. The other emerging marriage system is neolocal where the husband and wife live at a neutral place. This marriage system is becoming common as more urban-based families prefer buying land as their neutral home especially in urban areas. Under neolocal marriages, transfer of land to children is under the control of the parents. While almost 100% of the people interviewed in neolocal residence reported that the motive for establishing neolocal residence was to escape shortfalls of matrililocal and virilocal inheritance practices, findings from this study reveal that the lineal logic of customary land rights is heavily entrenched and path-dependent. For instance, 70% of the families with a background of matrilineal inheritance practices reported that their daughter will inherit their land and house property. This figure was as high as 80% in case of families with a background of patrilineal inheritance practices where parents openly claimed that their property is for their sons. The interesting finding was among families where one parent is either coming from matrilineal or patrilineal systems. While, the findings reveal that men continue to have control rights over land and property, transfer of land to children is predominantly based on husband’s past cultural affiliation. Where the husband is coming from a patrilineal system, sons are preferred and where the husband is coming from a matrilineal system, daughters are preferred. It should, however, be stated that intra-household conflicts are not uncommon under this arrangement. In cases of marriage breakdown, formal courts have usually been used to define the inheritance practice to follow and settle conflicts. For instance, five families (three from matrilineal and two from patrilineal) had land inheritance cases in formal courts during the time of the fieldwork. This finding, therefore, belies the emerging wisdom touting neolocal marriage systems as agents of transforming customary land inheritance system away from the logic of lineal transfer of land. Evidences from this study reveal that while there is potential to temporarily hiatus the existing inheritance system, neolocal marriage system will reproduce the same system. The statement from a husband under neolocal land tenure put this situation into context:

4.4. Inter and intra-household land rights and implications of land formalization While almost all households have access to farming land, there are huge variations in terms of intra-household land ownership and control rights. In patrilineal communities, land ownership and control rights, including decisions over land use and disposal, are held by the elder male member of the family. While land is owned by women in matrilineal communities, decisions over land use is complex. For women in marriages, their husband exercises land control rights. Unmarried and divorced women hold land ownership and land use rights. However, in both situations the decision to dispose of the land is under the control of uncles, culturally referred to as mwini-mbumba - meaning owner of the family lineage. In terms of inheritance, sons are rightful heirs of the family land in patrilineal societies while under matrilineal-matrilocal societies daughters are the rightful heirs (see Peters, 2010; KatheweraBanda et al., 2011). The question of differing land ownership and control rights in Malawi can better be understood by considering the culturally recognised owners of the land and temporary accepted land users consisting usually of divorced and widowed. The context of becoming a temporary land user in Malawi varies depending on the type of marriage system which defines individuals who hold secondary land rights. It is to this discussion that this paper now turns to. There are two main marriage systems being practiced in Malawi namely: patrilineal and matrilineal. Under matrilineal system prevalent in the central and southern regions of the country, a husband is culturally expected to live at his wife’s home upon marriage (matrilocal/ uxorilocal). This arrangement is locally known as Chikamwini. The wife is allocated farming land by her parents or clan leader (Holden et al., 2006; Djurfeldt, A et al. 2018). Thus, land is handed down through the female lineage. Culturally, the man moving to the wife’s home is supposed to have access to land through the wife but does not hold full ownership rights. Under the patrilineal system prevalent in the northern region, wives are culturally expected to live at their husband’s home upon marriage and payment of bride price locally known as lobola

“I bought this land because I did not want to live at my wife’s home and I have registered my land and property. [In whose name have you registered the land]. It is in the name of my daughter [why]. My daughter will get married and live here while my son will get married and move out. I want this house to remain within my lineage. My son can easily give away my house to the other family, my daughter cannot” The findings from this study, therefore, point to the plausibility of understanding the operation of cultural systems without disparaging them as inappropriate. 4.5. Customary land act, 2016: any provision for the registration of secondary land rights holder? The 2016 Customary Land Act promotes registration of land parcels into customary estate. Implicit in the Act is an assumption that every land user will have the freedom to register the land they are using. This 685

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view is based on the understanding that every land user holds primary land rights. A good example is the case for joint registration for spouses where the new law promotes joint titling for spouses. While the spirit of joint registration is to secure the rights of spouses, this provision goes against the lineage practices of land transfer. The argument in this paper is that unless customary land is properly understood, initiatives aimed at restructuring land rights are bound to face resistance. Customary Land Act, 2016 section 21 sub-section 2, stipulates that an application for registration of a customary estate has to be signed by not less than two persons from the family lineage unit. Though this requirement seems to safeguard lineage families against intra-household land grabbing, experience with similar initiatives indicate that it is unlikely to ‘safeguard’ against some lineal relatives being excluded or land being grabbed (see Ng’ong’ola, 2009). As highlighted earlier, while it is indisputable that this constitutional provision does point to the spirit of safeguarding land tenure of vulnerable groups facing land grabs, it does not address the logic of linear land inheritance. Equally important, it is not clear how the new law is going to address the rights of secondary land users affected by the country's Deceased Estates (Wills & Inheritance) Act 2010. This is so as these Acts are a mirror of the institutions of descent which gives less ownership cognizance of the secondary property rights holders.

that land titling is necessary to achieve tenure security and stimulate landbased investment. They particularly argue that land titling will give us tenure security as land will not be unnecessarily taken away from us. While land reform narratives converge on the need for reform, they evidently diverge on its end objectives. According to the former view, customary land reform should re-enforce tenure security, arguing land belongs to us, the owners of the land and not the state. This view means that land should not fall outside the culturally established channels of IWT. Unlike the earlier group who define land transfer from an IWT perspective, CSOs and government bureaucrats see land transfer in form of legally accepted transactions. The central argument from this group is that land tenure security is a prerequisite to achieving increased land investment, productivity and social justice. This view has the genuine support of several international NGOs and financial institutions such as European Union (EU) and World Bank. For instance, EU through a grant of EUR1,450,000 is supporting three organizations (Land Net, Oxfam, CEPA) to implement a land governance project in the country in line with the new land law. Generally, the IWT-land security divide has generated polarized social and political contestations for the land reform initiatives. While government, CSOs and the private sector have greatly supported initiatives for land reform, different scales of traditional institutions have mounted strong resistance against the land reforms (see Chinigò, 2016). For instance, senior chiefs have lobbied for their inclusion in the new land laws and are now chairpersons of the CLC (Group Village Headman) and CLT (T/A). The original framing of the land policy did not allow chiefs to be chairpersons of these committees in the explicit reasoning of bringing about democracy, transparency and accountability. This trend of political settlements reignites unsettled debate about the role of traditional institutions on democracy and land management (see Ntsebeza, 2005). Lower chiefs who have been left out in the new structure, especially village heads, feel the new land law provides a springboard for land grabbing by bringing external agents. The lower chiefs argued that the new law has snatched our control on land and on the people we are supposed to lead. The findings from this study mirrors several research findings on the performance of land tenure reforms in Africa. For instance, land tenure reforms implemented in Benin, Uganda, Ivory Coast, Tanzania and South Africa have generated a lot of controversies on their ability to achieve land tenure security and equity (see Boone, 2007; Joireman, 2007; Lavigne-Delville, 2014). The irony of current initiatives to customary land registration is that experiences of past land dispossession orchestrated by the state belie the new promises.

4.6. Motivation for formal registration of secondary land rights holders The question of registering secondary land rights holders cannot be fully understood without reference to individuals who bear the responsibility of consenting to land use and the spirit behind their decisions. As earlier highlighted, in Malawi clan leaders and local chiefs manage customary land in line with the logic of lineal land transfer within the existing cultural practice. Elder males and uncles in patrilineal and matrilineal communities respectively are culturally mandated to exercise control over land allocation and transfer (see Kathewera-Banda et al., 2011; Berge et al., 2014). The understanding is that land is for an intergenerational wealth and belongs to those that are sustaining the history of the family lineage. The primary objective of customary land administrators is to preserve land for use by the family lineage today and in the future. Thus, customary land is not supposed to be transferred to members outside the family or those that have weak ties to the family lineage. Thus, in both societies land symbolically means maintenance of the family lineage. Practically, individuals having weak family ties are allocated land for use, but such individuals do not hold permanent ownership rights over land. The wisdom is that titling land held by secondary rights holders is taking away intergenerational wealth from the core family lineage thus obliterating lineage wealth (see Platteau, 1996; Jackson, 2003). An interview with a local chief in a patrilineal community throws light on the practice of customary land allocations:

4.8. Ambivalent juncture: the ironies of legal security versus social security While the promise of formal land title is appealing to secondary land rights holders, it is also quite threatening to them. This is so as land rights in agrarian societies is not just about defining land entitlements but also establishing and legitimizing social support relations that can be accessed by an individual (Jackson, 2003; Lipton, 2009). Ironically, current customary land reform in Malawi does not only consider customary land tenure as obsolete, but also pitches secondary land rights holders against the very social relations they rely upon. This is not only artificial but also ignores the fact that in agrarian societies social obligations are intrinsically linked to land tenure. In particular, land tenure establishes welfare relations that serve the needs of secondary land rights holders. According to the discussions carried out with secondary land rights holders, primary land rights holders play a crucial role in their social life arguing “my in-laws (primary land rights holders) are very supportive in my life. They have helped me since I lost my husband and they always check on my welfare and those of my children, I depend upon them on almost all issues in my life”1. In the land reform mainstream discourse, formal land titling is equated with improved land security and livelihoods, including for secondary land rights holders (GoM, 2002; de Soto,

“female children are not given land for life in my village, they are given land for farming if they are back from their marriages due to divorce or death of spouse. We are not supposed to allocate them land in their name because they can get married again. If they get married again, the land goes back to the owner. Women do not own land here, land belongs to their brothers whom I count as my permanent kinsmen” 4.7. Competing objectives: intergenerational wealth versus land security? This paper argues that there are competing objectives among key land stakeholders with regard to land registration. One group, especially local communities see land registration as unnecessary arguing land is already ours, it is for our family lineage. There are a few converts who believe that land registration is important, but not in the understanding of the new law. This group of people accepts registration based on the existing customary practices and not as provided for in the new law. The second group, comprising government bureaucrats and civil society organizations, argue

1

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Interview with a widow in Kasungu.

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1989; Scott, 2008). However, this assumption is not backed by empirical evidence in Malawi. Secondary land rights holders are refusing to give away the land tenure they know, though with minimal control, for an uncertain land tenure regime. Firstly, the process of formal land registration in Malawi, and in most developing countries, favours the privileged group of people in society, most of which are not secondary land rights holders. For instance, in all the FGDs conducted, local communities feel the state cannot protect their land rights as it cares more about the elites. About 85% of the people interviewed also feel formal courts cannot manage customary land as they take very long time to adjudicate on customary land matters. In the words of a married man (secondary land right holder) from Phalombe, “traditional courts are better than formal courts, formal courts are for the rich, the rich are able to get lawyers to stand for them and they make you dull in court, we have land matters here which have been in court for more than four years, during this time both of you do not use the land”. The second irony is that the process of land titling requires considerable financial input in terms of surveying, mapping and titling fees. About 80% of the secondary land rights interviewed indicated that “I do not have money to pay for their land titling fees”. The fears of secondary land rights holders in Malawi are not without cause but depicts a continuous history of land dispossession orchestrated by the state. Malawi’s history is littered by numerous cases of past customary land expropriation by the elites (see Kanyongolo, 2008; Chinsinga, 2008). Thus, there is dissonance between the empirical evidence of state interventions in land matters and its current promises. It is also important to note that land security does not only end with titling but also with the ability to recognize and protect such rights. The irony of improving land tenure security through titling lies in the fact that land titling, like any institution, is expensive to establish (see Chang, 2011), something that most secondary land rights holders lack. I therefore argue that land titling is an irony to vulnerable groups of people to which most secondary land rights holders belong. Findings from this study point to a mismatch between the theory of property rights as presented in the current customary land titling agenda and the actual customary land tenure practice. While the land titling agenda is based on providing formal legal security to secondary land rights holders, customary land rights practices are based on the social security that accompany lineal kinship relations. It is from this position that land titling remains unsupported within the different assemblages of customary structures. Thus, findings from this study demonstrate that the new law has failed to offer a land governance framework that could respond to the lineal logic of customary land. While it is indisputable that the impetus driving land reform in Malawi has both the local and international face, the form of land reform has mainly been shaped by global economic pressures such as rising food prices, alternative investment options and liberalization, energy crisis, demand for fresh water and tourism (Cotula et al., 2009; Borras and Franco, 2010; Zoomers, 2010). For instance, Shepard and Mittal (2009) posit that land reform in developing countries is driven by the need to cut down on red-tape and promote private investment in large scale land transactions. This finding reveals the dissonance between customary land tenure as a collective social logic2 and the new land law as rational choice coordinating mechanism (Chang, 2011; March and Olsen, 2011). The central claim from this paper, therefore, is that rather than providing a clear path for the evolution of customary land rights, current land reform is establishing a neoliberal private property rights framework aimed at facilitating land market transactions. Within this process, both primary and secondary land rights holders have the potential to come out losers. In the first place, primary land rights holders will not be able to title all the land beyond what they are using.

According to the new law, all unallocated customary land belongs to the state but there is no clear definition of unallocated land. There is thus high risk of losing unallocated land considering the hazy definition of unallocated land. Equally important, secondary land rights holders are unsure about the promises of land titling and thus hesitate to support its cause. This is so as there is dissonance between the empirical experiences of formal land titling and its current promises. While promising to benefit vulnerable groups of people, it is doubtful that powerful elites such as chiefs will permit secondary land rights holders to register their land. According to the cultural practice in Malawi, secondary land rights holders are granted life rights in land but without disposable rights. It was specifically pointed out during the consultations that land is taken away from the secondary land rights holders once they begin to claim ownership of the land. The evidence from this study supports the view that the process of establishing new land rights in customary land potentially reignites existing forms of conflict and distrust (Lipton, 2009; Fitzpatrick, 2006; Ng’ong’ola, 2009). This paper argues that the major challenge in formalizing secondary land rights is that while secondary land rights may be perceived as leasehold rights, the new land law presents them as freehold rights. In the process of formalizing property rights for titling, primary land rights holders are likely to either terminate the leasehold or formalize its existence. This situation means that land titling interventions may worsen rather than address land insecurities of secondary land rights holders by closing recognition of silent land rights (see also Platteau, 1996; Lipton, 2009; Demsetz, 1967; Amanor, 2012). One of the cases reported during data collection help to put this scenario into its proper context. A woman under chitengwa, living in her husband’s home in a matrilineal society, got a loan from a village bank and presented her land as collateral. The woman failed to pay back the loan and in order to recover the loan members of the village bank wanted to sell the land. A local chief delivered the following judgement: “the owners of the land protested because that land was not her land, she was just living there because they allowed her to live there. When it was brought before me, I also supported their argument and my judgment was that they cannot sell the land. Instead, the loan group demolished the house she was living in and sold the iron sheets to recover their money. As I am saying, the woman has left and has gone to her natal home” Likewise, formalization of land rights in terms of titling ignores the agro-ecological factor guiding land distribution. In most agrarian societies, dambo land3 is periodically allocated to households as a livelihood insurance against unforeseen harsh weather conditions. By investing all land rights in one individual, the flexible land allocation based on agro-ecological differences is not maintained. I, therefore, argue that the promise of protecting secondary land rights in Malawi within the new land law lacks convincing empirical evidence and is grossly misplaced. 5. Conclusion This paper has demonstrated that the dilemma of titling customary land in Malawi is real and a complex one. The preliminary evidence from field consultations on the likely operation of customary land rights points to a troubled future and a farfetched dream. Instead, land tenure insecurity for secondary land rights holders may become more visible and worse than before. This is so as the new land law has failed to respond to the lineal logic guiding the functioning and inheritance of land rights within customary land. In Malawi, land is the only significant wealth for intergenerational transfer through family lineage and attempts to restructure land rights will not only be resisted but also

2 It should be pointed out that this does not mean that customary land tenure is inefficient. The inefficiency of customary land tenure system is not given but dependent on several factors (see Chang, 2011)

3 This is a land along the river banks and is usually farmed during dry season as it retains water and moisture

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potentially subject families to a lot of constructed vulnerabilities. Unless Malawi experiences economic transformation so that a variety of property and family wealth are included in intergenerational wealth transfer, land reform will continue to face stiff resistance from the custodians and assemblages of customary institutions. Thus, the premise that increase in land value alone will result into customary land tenure evolution to formal private property right arrangement is equally flawed.

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Appendix A. Israel’s (2009) Statistical Formula for Household Sample Size

n=

N 1+N(e)2

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