Summary of New Land Laws

Summary of New Land Laws

The Ten land related pieces of legislation that were enacted in 2016 are as follows;

  • Land Act 2016,
  • Physical Planning Act 2016,
  • Land Survey Act 2016,
  • Customary Land Act 2016,
  • Registered Land (Amendment) Act 2016,
  • Lands Acquisition and Compensation (Amendment) Act 2016,
  • Malawi Housing Corporation (Amendment) Act 2016,
  • Forest (Amendment) Act 2016,
  • Public Roads (Amendment) Act 2016 and
  • Local Government (Amendment) Act 2016.

Below is a brief summary of each of the land related Acts and what it intends to achieve.

1. The Land Act, 2016

This Land Act 2016 is the primary law on land administration and management in Malawi. The Act is largely similar to the Land Act, 1965. The Act vests all land in perpetuity in the Republic in order to be compliant with section 207 of the Constitution of Malawi. The Act provides for two categories of land: public land and private land. It creates the office of the Commissioner for Lands and outlines his powers on land administration and management.

The Act, more critically, prohibits the grant of freehold title in Malawi. However, existing freehold title holders will not be affected by the Act. At the time the Act was enacted, it made reference to Act Number 16 of 2016. Under the Land Act, 1965, there were three categories of land: Public, Private and Customary. Under the Land Act, 2016, Public land includes land held on trust for the people of Malawi by Government, a local government authority or a Traditional Authority, Government land, unallocated customary land, national parks and wildlife reserves among others; private land is land on freehold title, leasehold title or a customary estate; and customary land is land used for the benefit of a community and includes unallocated customary land in a Traditional Land Management Area (TLMA).

The Act has eight parts with the following key provisions;

  • Part I provides for key definitions in land administration
  • Part II provides for land administration. It provides for the office of the Commissioner for Lands and his role in land administration and management.
  • Part III provides for the categorization, classification and vesting of land. This Part also provides for allocation of land to the Malawi Investment and Trade Centre (MITC) for investment purposes.
  • Part IV provides for public land and the prohibition of the right of entry to Government land. It also provides for the procedure on acquisition of customary land for public utility; and the conversion of customary land to private land.
  • Part V covers private land. It outlines the procedure for acquisition of private land by citizens and non-citizens. It also provides for the repossession of private land that remains undeveloped by a title holder in breach of a lease covenant.
  • Part VI provides for the Minister’s power on the regulation, management and control of user of land; and also the Minister’s power of re-entry.
  • Part VII provides for the regulation of trespass, encroachment and unlawful occupation of land.
  • Part VIII provides for the Minister’s power to make regulations; and the requirement for proof of citizenship in land transactions.

To a greater extent, as alluded to earlier, the Land Act, 2016 aligns the concepts under the MNLP.

2. The Physical Planning Act, 2016

The Physical Planning Act 2016 is a comprehensive law on physical planning, urban and rural development, land use, and land management. The Act replaces the Town and Country Planning Act of 1991. The key implication of the enactment of the Act is that the whole of Malawi shall be a planning area, both urban and rural. It is provided that local land use plans should be produced in tandem with the piloting of the Customary Land Act. Disputes between claims for customary estates and land use plans will be made clear and resolved at the public display stage. This requires a heavy injection of human and capital resources for the full implementation of the law. The Physical Planning Act confers authority over planning matters – at the basic level – to local government authorities. The Act has ten Parts dealing with the administration of physical planning in Malawi; planning authorities; plans and plan making; development control and enforcement; special areas; acquisition of land and compensation; appeals on matters relating to physical planning; the physical planners board; and miscellaneous matters, including the power of the Minister, among others, to make regulations. The Act, as a departure from the previous planning law, establishes the office of the Commissioner for Physical Planning, the Physical Planning Council and the Physical Planners Board. The Council is responsible for advising Government on broad planning policy, planning standards, and the National Physical Development Plan; and resolving disputes on physical planning matters.

3. The Land Survey Act, 2016

The Land Survey Act is a regulatory law on the profession of surveying and other related matters. The Act has eight parts with the following key provisions;

  • Part I provides for preliminary matters including definitions of terms. It is noted that unlike the previous Land Survey Act of 1955, the definition of “survey” under the Land Survey Act, 2016 is more expansive.
  • Part II of the Act deals with the administrative matters including the establishment of the office of the Surveyor General. The Surveyor General is responsible for the surveys on public land and any land on behalf of Government for grant, lease or easement; supervision of surveys of land for registration; supervision and control of surveys for purposes of registration; record keeping of surveys; supervision of the preparation of maps and other geographical information. Section 4 (c) and (e) of the Land Survey Act, 2016 provides that the Surveyor General shall take charge and preserve all records relating to all surveys in Malawi.
  • Part III of the Act provides for the Land Surveyors Registration Board. The Board shall be responsible for the regulation of the surveying profession, including the licensing and registration of surveyors in Malawi.
  • Part IV provides the elaborate provisions on regulation of the surveying profession. Section 27 of the Land Survey Act, 2016 states that only licensed surveyors are allowed to register and lawfully practise land surveying in Malawi.
  • Part V provides for survey marks and boundaries; survey of Traditional Land Management Areas and townships; and preservation and maintenance of survey marks. The Act states that an owner of land shall be responsible for the preservation and maintenance of survey marks.
  • Part VI of the Act establishes the Malawi Geographical Information Council which shall be responsible for functions related to spatial data.
  • Part VII gives immunity to Government for incorrect surveys that were done in good faith.

4. The Customary Land Act, 2016

The Customary Land Act 2016 underpins all pilots implementing the five new and related laws in the eight districts and any area as per required by a particular project. The Customary land Act provides for the creation of Customary Estates. Customary Estates are the product of the conversion of customary land rights to private land rights, which should strengthen the land rights of smallholder farmers and others. The Act generally provides for the administration and management of customary land as it formalizes the role of chiefs (both at the level of a Traditional Authority and a village headperson) in land administration and management. Chiefs shall work hand in hand with customary land committees in the administration and management of land in TLMAs. The Act has eight Parts dealing with, among others, administration and management of customary land; conversion of customary land to private land and vice versa; grant and management of customary estates; adjudication of interest in customary land; and dispute settlement. The Customary Land Act is closer to the Customary Land (Development) Act, 1967 in terms of the principles of law it seeks to cover. The 1967 Act provided for registration of customary land as private interests primarily to foster agricultural development. The major innovation under the Customary Land Act is the creation of customary estates in TLMAs for any purpose and not necessarily agriculture.

5. The Registered Land (Amendment) Act, 2016

The Registered Land (Amendment) Act provides in section 12(3) of the Registered Land Act for the registration of customary estates. Part V of the Customary Land Act provides for grants and management of customary estates. It is quite an elaborate Part. The relationship between the Registered Land Act and the Customary Land Act is such that once the process of the application, grant of consent and certificate of customary estate is complete under the Customary Land Act, the requirement under section 12(3) of the Registered Land Act is the filing of the consent of a land committee with a land registry. The following statutes contain mundane amendments to the specific laws following the development of the enacted Land Act, 2016: the Forest (Amendment) Act, the Malawi Housing Corporation (Amendment) (No.2) Act, the Public Roads (Amendment) Act, the Lands Acquisition (Amendment) Act, and the Local Government (Amendment) Act.

6. The Forest (Amendment) Act, 2016

The Forest (Amendment) Act empowers customary land committees to demarcate a village forest area. The amendment was effected in respect of the provisions of the CLA for the establishment and operationalization of Customary Land Committees.

7. The Malawi Housing Corporation (Amendment) Act, 2016

The Malawi Housing Corporation Act was amended to empower the Corporation to acquire a grant, lease or other disposition under customary land under the Customary Land Act, 2016.

8. The Public Roads (Amendment) Act, 2016

The Public Roads Act was amended to outline elaborate provisions on acquisition and compensation in cases where land has been converted to public land.

9. The Lands Acquisition (Amendment) Act, 2016

The Lands Acquisition (Amendment) Act has provisions on the regulation of land acquisitions and compensation. The land acquisition law was now upon enactment called the ‘Lands Acquisition and Compensation Act’. The Act has introduced the principle of appropriate compensation. There is now a new Part IIA on Compensation, which clearly outlines the method for arriving at an appropriate compensation in land acquisition. An assessment of compensation shall look at loss of occupational rights; loss of land; loss of structure; loss of business; cost of relocation; loss of good will; cost of professional advice; nuisance; loss or reduction of tenure; or disturbances. The provision of an elaborate method of assessing compensation is a welcome development. Before the enactment of the Lands Acquisition (Amendment) Act, compensation was at the mercy of the Minister. This was unsystematic and amenable to unjust awards of compensation.

10. The Local Government (Amendment) Act, 2016

The Local Government (Amendment) Act specifically empowers the Chief Executive Officers and District Commissioners to sign and certify valuation rolls.