Legal Pluralism and Tenure Security: Exploring the Relationship between Statutory and Customary Land Tenure in Zambia

Abstract

In many parts of the developing world like sub-Sahara Africa, legal pluralism can be found where state and customary law co-exist as legal systems in land administration. On one hand, state law is used to administer state land under statutory tenure while on the other hand, customary law is used to administer customary land under customary tenure systems. However, for many decades now, governments have been reformulating land laws to provide for the transformation of customary land tenure systems into leaseholds under statutory tenure. The assumption behind this transformation is that it would lead to economic growth as the privately owned land can, among other things, be used as collateral to obtain loans. Nonetheless, state laws on land still provide for the statutory recognition of the customary tenure systems that the governments intend to transform. While the effects of the conversion of customary land to state land or leaseholds are well documented, the real root causes of these effects are not well documented. In this paper we postulate that the effects of the conversion of customary land emanate from legal pluralism. To this effect, we focus on the state land law of Zambia, the Lands Act of 1995 to: 1) investigate the meaning and interpretation of the sections in the Act that provide for the statutory recognition on one hand, and conversion of customary land, on the other; and 2) discuss the effects of the said sections on customary landholders. Methodologically, we use qualitative methods (largely in-depth interviews) to conclude that governments in sub-Sahara Africa are the architects of tenure insecurity because they (knowingly or otherwise) enact laws that are contradictory or conflicting in nature. In the case of Zambia, there are contradicting sections within the Lands Act 1995 where, while one section provides for the conversion of customary land, the other provides for statutory recognition of the same traditional tenure. This therefore casts a shadow of confusion regarding the meaning of “statutory recognition” in that in practice “legality”, by way of holding private title deed, always takes precedence over “social legitimacy”. The implication of this is tenure insecurity and an associated avalanche of evictions, elite capture, sub-division and enclosures of common pool resources, land grabs, and land conflicts. We recommend that, guided by research, concerned governments should consider emulating other countries like Tanzania and Botswana, which have enacted “bespoke” land laws that are specifically meant for state land, and other land laws specifically for customary land.