Customs, Law and Women’s Land 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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