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Customs, Law and Women’s Land Rights in Zambia

Customs, Law and Women’s Land Rights in Zambia

January 21
21:09 2018

protection-for-womens-rights-in-zambia 

Placing land rights at the heart of development BRIEF Custom, Law and Women’s Land Rights in Zambia Zambia
By Peter Veit
INTRODUCTION: Most women in Zambia do not enjoy the same land rights as men. Zambia’s Lands Act provides support for women who hold statutory land, but the law does not apply to customary land. Most land is held
under custom and most customary tenure systems do not provide women with significant land rights — even when they do, traditional institutions often do not effectively implement the rules. December 2012
Peter Veit is acting Program Director of the Institutions and Governance Program at the World Resources Institute.
MAP Zambia’s Constitution recognizes property rights and protects all individuals against the deprivation of property. But other laws and customary
practices often fail to uphold the land rights of women. (Above) Twashuka Women’s Group, Luanshya, Zambia. Photo: © Heifer International  Custom, Law and Women’s Land Rights in Zambia 2
I N T R O D U C T I O N
Various policies and laws affect women’s rights to land, natural resources and other properties in Zambia, including the Constitution (1991, amended in 1998), Intestate Succession Law (1989), Lands Act (1995) and National Gender
Policy (March 2000). Zambia is also party to various international treaties that require compliance with antidiscrimination standards (e.g., United Nations Convention on the Elimination of All Forms of Discrimination Against Women), although many have not been incorporated into the domestic legal system (USAID 2010; UN-HABITAT 2005; Roth and Smith 1995). Zambia’s Constitution recognizes property rights and protects all
individuals against the deprivation
of property. Article 2(1) prohibits
discrimination by race, tribe, sex and
marital status—“no law shall make any provision that is discriminatory either of itself or in its effect.” Article 23(4)
(c) and (d) of the Constitution, however, explicitly excludes customary law and personal or family law. Therefore, where customary and personal laws discriminate against women, the Constitution provides little support and
may actually lend legal support to such discrimination (USAID 2010; UN-HABITAT 2005; Roth and Smith 1995).
The Intestate Succession Act governs the administration of an estate when the deceased did not leave a will. It does
not apply to customary land or to family and chieftainship property. Under the Act, the surviving spouse inherits 20% of the deceased’s estate (Section 5(1)). Where there is more than one widow, the estate is distributed proportionally to the duration of their marriages to the deceased and to the widow’s
contribution to the property. Natural
children of the deceased receive 50%
in proportion to age and educational
needs; parents receive 20%; and other
dependents receive 10% in equal shares
(Machira et al. 2011; USAID 2010; UNHABITAT
2005; Richardson 2004).
The Intestate Succession Act also
stipulates that where land or a house of
the deceased is held under a State lease,
the surviving spouse can remain in the
marital home until remarriage or death.
The spouse, however, does not inherit
the land or house, and cannot transfer,
sell or will the property. Where there
is more than one surviving spouse and/
or child, they hold the house as tenants
in common. Despite this law, relatives
and even neighbors sometimes challenge
these arrangements in court (Machira et
al. 2011; USAID 2010; UN-HABITAT 2005;
Richardson 2004).
L A N D G O V E R N A N C E
I N Z A M B I A
The Lands Act vests land in the President
who holds it in perpetuity for and on
behalf of the people of Zambia and
provides that the president administers
and controls all land for the use or
common benefit, directly or indirectly,
of the people. The law establishes two
main land categories: customary land
and State land. The President may
alienate State land to any Zambian
and, in some circumstances, to nonZambians.
The President may also
alienate customary land but must first
consider traditional law, consult with
affected persons, and obtain permission
from the chief and local authority (UNHABITAT
2005; Adams 2003).
The Lands Act establishes a Land
Tribunal (on the same level as the High
Court) to settle State and customary
land-related disputes, although it has
not functioned well. The Tribunal is
centralized, resulting in limited access
especially by poor people, many of
Zambian woman shows her voting card, 2011. Of the one million people that registered to vote in the 2011 national elections, about half
were women. Photo: © Louise Mellor/DFID
The Land
Act establishes two
main land categories:
customary and State. Local
courts administer customary
law, and many local court
rulings have perpetuated
customary rules that
disadvantage
women.
Custom, Law and Women’s Land Rights in Zambia 3
whom also lack an understanding of
its role and procedures. In 2010, the
government prepared a separate Lands
Tribunal bill but it has not been passed
into law (UN-HABITAT 2005).
The Local Courts Act (1966) recognizes
local courts as the administrators of
customary law and some statutory law.
Decisions from these courts can be
appealed to higher courts which enforce
customary law if it is not “repugnant
to natural justice or morality” (Section
12(1)(a) and (2)). Most local court justices
are men and many local court rulings
have perpetuated customary rules that
place women in disadvantaged positions.
There are also traditional courts
presided over by customary leaders that
resolve conflicts in accordance with local
customs and practices. Traditional courts
are not recognized by government.
The Lands Act does not make specific
reference to gender and does not
explicitly discriminate against women.
It, however, has profound implications
for women’s land rights because it
applies only to statutory land. Statutory
land includes State and leasehold land,
including land that has been converted
from customary tenure to leasehold
tenure (see below). The law does
not provide for the documentation,
registration or titling of land held under
customary tenure.
The Lands Act defines State land as land
“not situated in a customary area”—a
residual category which officially
constitutes 6% to 7% of Zambia. State
land is generally located in larger cities
and along the “line of rail,” where
soil fertility is good and agricultural
markets are nearby. Under the Lands
and Deeds Registry (Amendment) Act
(1994), State land has formal registered
title deeds and is administered by the
Ministry of Lands directly or by councils
under delegated powers. The procedure
to obtain a title for vacant State land
includes the President’s consent and
can take years. Previously, an individual
could apply for a provisional title, based
on a 14-year lease, although this no
longer applies. The President can also
issue leaseholds of State land—up to 99
years and renewable.
Under the Lands Act, land under
customary tenure can be converted into
private leasehold tenure and brought
under the statutory system subject to
the President’s approval. The process
involves recognizing customary rules and
obtaining the approval of the chief.
Once converted, the government
officially registers the leasehold tenure.
The law is silent on whether converted
land remains customary land under the
authority of traditional leaders, but,
in practice, the land is moved to the
Land Commissioner and becomes State
land. Most land held under custom is
converted to leasehold for investment
purposes (Brown 2005; Metcalfe 2005).
Statutory land is deemed by many local
people and investors to be more secure
than customary tenure.
Statutory land is subject to the
constitutional provision of gender equity.
Most statutory land is held by men,
although since the passing of the Lands
Act, women are gaining control of more
statutory land. Implementation of this
provision has been weak. Challenges
include biased land institutions, tedious
land transaction procedures and complex
application forms.
Land can be titled individually in a
woman’s name or jointly in the name
of both spouses. In urban areas, some
educated single women and married
women own plots in their own names.
Most land, however, is held by men and
a small percentage of land is owned
jointly by married couples. In most
rural and peri-urban areas, land is
considered to be owned by the male
head of household; few women have
their names on land documents or
consider themselves to be landowners.
In settlement and resettlement areas,
women and men have rights to land, but
applications and offers are usually in the
man’s name (Machira et al. 2011; GOZ
2005; Machina 2002; Keller 2000).
The allocation of statutory land also
falls short of the National Gender Policy
(2000) which articulates a national
vision of “attainment of gender equality
and equity” and a blueprint for gender
and development activities. The Policy
provides that 30% of land available for
State distribution should be allocated to
women, with the remaining 70% going
to men and women fairly. In 2004, the
government approved the Strategic
Plan of Action to operationalize the
Policy, although it has not been well
implemented. Many line ministries
do not have sectoral policies that
There are 73 recognized tribes in Zambia. Customary tenure rules and institutions
vary across ethnic groups, and are dynamic, changing to address new challenges and
circumstances. (Above) Zambian women’s group gathers to see results of new groundnut
shelling technology. Photo: © Swathi Sridharan/IRCISAT
Custom, Law and Women’s Land Rights in Zambia 4
incorporate gender, and few allocate
the financial resources to ensure gender
equity (USAID 2010).
In contrast to statutory land, land
held under customary tenure and
chieftainship property is by the
Lands Act administered according to
local customs. The law recognizes
ethnic groups as de facto custodians
(not owners) of customary land and
recognizes customary tenure as a form
of landholding—“(E)very piece of land
in a customary area which immediately
before the commencement of this Act
was vested in or held by any person
under customary tenure shall continue
to be so held and recognised and any
provision of this Act or any other law
shall not be so construed as to infringe
any customary right enjoyed by that
person before the commencement of
this Act” (Section 7(1)).
Few laws govern or regulate customary
tenure and traditional rulers. The
Chiefs Act (1965) provides that chiefs
may perform their functions under
customary law if they do not contradict
the Constitution or other written law
(Section 10(1)(a)). This section appears
to contradict the constitutional provision
on gender equity which explicitly
excludes customary law. In practice
discriminatory customary rules and
practices have continued.
Approximately 94% of the land in Zambia
is officially designated as Customary
Area (Mudenda 2006; Brown 2005; Van
Loenen 1999; Chinene et al. circa 1995),
and about 82% of the farming households
cultivate traditional land (1.1 million
households in 2008). Since the Lands
Act was enacted, a considerable amount
of customary land has been converted
into private leasehold tenure. While
this converted land is still designated
as Customary Area, in 2005, only an
estimated 84% of land was actually held
under customary tenure (Brown 2005;
Metcalfe 2005). Today, that figure is no
doubt lower.
L A N D R I G H T S I N
C U S TO M A RY S Y S T E M S
There are 73 recognized tribes in Zambia,
headed by 240 chiefs, eight senior chiefs
and four paramount chiefs (Machira et al.
2011; Mudenda 2006). Customary tenure
rules and institutions vary across and
sometimes within ethnic groups. They
are also dynamic, changing over time to
address new challenges and circumstances.
Customary tenure systems are generally
unwritten—most land held under custom
has no formal documentation—with
traditional rules passed orally from
generation to generation.
The land held by each chief, however, is
documented and the information held
by the government Survey Department.
Some chiefs keep records of the land
held by their subjects (Sichone 2008;
Mulolwa 2006; Van Asperen &Mulolwa
2006). The holders of customary land do
not pay land taxes to government. In the
past, people paid homage to their chiefs
and some continue to do so.
Under most customary systems, land is
held by the community, but individuals,
families and clans have private use rights
that are often held for generations. A
share in village land is regarded as a
birth right. In many groups, some land
is also held and managed as common
property. Under customary law, land can
FACT
Under most customary
systems, land is held
by the community, but
individuals, families and
clans have private use
rights that are often
held for generations.
The allocation of statutory land falls short of the National Gender Policy, which provides that 30% of land available for State distribution go to
women, with the remaining 70% going to men and women fairly. (Above) Village off Lundazi Road. Photo: © bathyporeia
Custom, Law and Women’s Land Rights in Zambia 5
FACT
be transferred to another community
member, but sales to outside people
and entities were historically prohibited.
This restriction, however, is eroding,
especially in areas with fertile and
otherwise valuable land. Common
methods of acquiring land include:
clearing of bush land; allocation from the
chief; inheritance; inter-vivo transfers;
and purchases.
Under most customary arrangements,
the chief or headman allocates land
and regulates communal areas. In many
groups, women access land through their
natal families and husbands. A chief
may allocate land to a single woman for
farming, especially if she has children,
but rarely to a married woman in her
own right. Female chiefs or headwomen
do not act differently from their male
counterparts in administering land, and
most rural women do not challenge their
unequal positions under customary law
(Machira et al. 2011).
In Zambia, customary land was
historically kept in the lineage or clan.
Customary tenure was dependent on the
societal systems (matrilineal, patrilineal)
and more specifically on the custom
of settling after marriages (uxorilocal,
virilocal). In matrilineal societies,
descent and inheritance followed the
mother’s line; in uxorilocal marriages,
a man and woman moved to the
woman’s home to live after marriage. In
patrilineal societies, descent followed
the father’s line; in virilocal marriages,
the couple moved to the husband’s home
to live (Van Asperen &Mulolwa 2006;
Chinene et al. circa 1995).
Sixty-nine of Zambia’s 73 ethnic groups
are matrilineal. In matrilineal societies
with uxorilocal marriage, land passes
through the female line to male family
members who generally control land
use. Women access land through their
natal families and men receive land
through their wives. When a man dies,
his primary heirs are his sisters’ children,
although his widow and children usually
retain access to some land. Since women
can remarry, this practice helps ensure
land remains within the family (Van
Asperen &Mulolwa 2006; Chinene et al.
circa 1995).
In patrilineal societies, a male member
receives a portion of land simply by
lineage or clan membership. In patrilineal
societies with virilocal marriages,
unmarried female members are allocated
land through male members.
Such allocations are temporary until
the woman marries and moves to
her husband’s home. Married women
access land through their husbands and
generally do not have land titles (Van
Asperen &Mulolwa 2006; Chinene et
al. circa 1995). While divorced women
are often denied continued land use,
widows may be permitted to use some
land. Many divorced or widowed women
return to their original homes, where
they depend on male kin to access land
(Van Asperen &Mulolwa 2006; Chinene et
al. circa 1995).
Tenure arrangements have changed
significantly over time and, in some
communities, customary systems
have been abandoned. In some areas,
customary land has become more
individualized, the nuclear family has
grown in importance, and land has been
passed down through the nuclear family
as opposed to a lineage or clan (Machira
et al. 2011; GOZ 2005; Unruh et al. 2005;
Hansungule et al. 1998). Some farmers,
especially in matrilineal societies, prefer
direct bequeathment to children and
have pioneered inter-vivos transfer, wills
and even statutory registration.
There is a growing practice of “property
grabbing” in which relatives—including
female relatives—take possession
of the land and other property of a
deceased man. Some relatives argue
that they grab property because they
are burdened by the responsibilities
of caring for the decedent’s family. In
practice, however, many families claim
the property but do not uphold the
accompanying caretaker responsibilities
(Machira et al. 2011).
Various efforts designed to strengthen
women’s land rights are underway.
Some actions focus on educating women
about their legal rights and sensitizing
communities about the advantages of
strong women’s rights. Other efforts
address the cultural practices that stand
In Zambia, a growing number of women are challenging
the system when their land rights are violated, and in
some cases, gaining the support of local leaders.
Various efforts designed to strengthen women’s land rights and their agricultural
productivity are underway. (Above) Woman tests a groundnut shelling machine.
Photo: Swathi Sridharan/ICRISAT
Custom, Law and Women’s Land Rights in Zambia 6
as barriers to implementing gender-fair
inheritance laws. Still other investments
focus on changing discriminatory
customary rules (Machira et al. 2011).
Some non-governmental organizations
(NGOs) focus on documenting customary
tenure arrangements, and encouraging
chiefs to keep a land register of who
is entitled to which plots. While such
records do not carry the same legal
weight as government-issued title
deeds, written documents defining the
boundaries of family land and identifying
the landholder can help men and women
defend their rights in cases of ownership
conflicts (Machira et al. 2011; VindAndersen
2010).
In October 2009, the National
Constitutional Conference adopted the
report of the Land and Environment
Committee, and reached agreement
on new land provisions. Among other
measures, the 2010 draft Constitution
provides for: equitable access to
and ownership of land by women;
continuation of customary and private
leasehold tenure systems; means
to secure customary land; and costeffective
and efficient settlement of
land disputes. It also prohibits land
speculation, establishes maximum
holdings of arable land; and calls
for periodic land audits to address
imbalances in land alienation, equitable
access to State land, and settlement of
landless people (USAID 2010).
Zambia’s experience shows that while
customary tenure systems often do
not provide women with strong land
rights, in many societies, traditional
rules and leaders are changing or being
abandoned. In some cases, the changes
are further eroding women’s land
rights. In other cases, they are being
strengthened. The Lands Act supports
women’s rights to statutory land; many
NGOs are working to strengthen women’s
land rights; and some local government
officials and traditional leaders are
advancing women’s rights. Passage of
the draft National Land Administration
and Management Policy, enactment of
the draft Constitution and reform of the
Lands Act, Intestate Succession Act and
other discriminatory laws would further
support women’s land rights and help
Women planting trees with the Savannah Project in Mufulira Town.
Photo: © Trees for the Future
eliminate discriminatory cultural rules
and practices. Where customary rules
provide women with equal land rights,
strengthening of traditional institutions
could improve implementation.
In Zambia, a growing number of women
are challenging the system when their
land rights are violated, and, in some
cases, gaining the support of local
leaders and advocates (Vind-Andersen 2010). For example, some NGOs are helping organize community widows’
support groups that attempt to fend off property grabbers. Additionally, some local government councils have
put in place measures calling for land allocations to women beyond the 30% threshold in the National Gender Policy.
There are also indications that some chiefs have started allocating land to women, including single women, widows and women’s groups (Machira et al. 2011; USAID 2010). Various reforms have been initiated. The draft National Land Administration and Management Policy of October 2006 recognizes that many women lack control over land, especially in customary areas, and some customs exclude women from accessing and holding land by virtue of their status and gender. The Policy recognizes that: 1) the “acquisition and ownership of land in Zambia continues to be a major hindrance to women’s participation in national development;” 2) “In its current form, customary tenure does not offer sufficient protection for disability care, gender equality and resource conservation as provided for in the Constitution of Zambia;” and 3)“The major drawback…is that the Lands Act allows customary laws which mainly
confers land ownership on men to apply to the administration of traditional land.” The draft Policy adopts “[t]he principle of encouraging fair and equitable access to land and secure tenure among all
the people of Zambia irrespective of their abilities, race, beliefs, gender and ethnicity.” It calls for government
measures to address land and gender matters, including: “(a) Review statutory and customary laws and practices that perpetuate gender discrimination; (b) Mainstream gender in all institutions administering and managing land; (c) Implement at least 30 percent land ownership for women; and (d) Devise an advocacy and sensitization programme on gender.” It also calls for recognizing “the rights of land users by defining these rights through formal survey and registration so that everyone, irrespective of social status, gender or origin can have similar rights to land.”  Custom, Law and Women’s Land Rights in Zambia 7 FOCUS ON LAND IN AFRICA focusonlandinafrica@gmail.com www.focusonland.com Project developed by: With initial funding from: Adams, M. (2003). Land Tenure Policy and Practice in Zambia: Issues Relating to the Development of the Agricultural Sector. Retrieved from HYPERLINK “http://www.aec.msu.edu/fs2/ zambia/ resources/Land1.pdf” http://www.aec.msu.edu/fs2/zambia/resources/Land1.pdf.
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