Law, Social Justice & Global Development (An Electronic Law Journal) Customary Land Tenure Reform and Development: A Critique of Customary Land Tenure Reform under Malawi’s National Land Policy Chikosa Mozesi Silungwe PhD Candidate School of Law University of Warwick [email protected] This is a Refereed Article published on: 23 April 2009 Citation: Silungwe, C. ‘Customary Land Tenure Reform and Development: A Critique of Customary Land Tenure Reform under Malawi’s National Land Policy’, 2009 (1) Law, Social Justice & Global Development Journal (LGD). http://www.go.warwick.ac.uk/elj/lgd/2009_1/silungwe Silungwe, C. 1 Customary Land Tenure Reform and Development Abstract Development, as a post–Second World War phenomenon, has witnessed the dominance of the market at the close of the twentieth century. In relation to agrarian reform, neo–liberal land reform models laud individual title as a catalyst for economic growth. Customary land tenure has been adjudged anathema to development as it is supposedly economically inefficient. The economy efficiency argument is not new. In Malawi, colonial and post–colonial land law and policy has favoured individual title in pursuit of a ‘capitalist’ economy. In 2002, Malawi adopted a National Land Policy. Despite the claims of a fair redistribution of land to the ‘poor’, the policy adopts a neo–liberal approach to customary land tenure reform, inter alia, to promote a formal land market. The implications of the neo–liberal framework for the ‘poor’ is that it will benefit the ‘non–poor’; it leads to the integration of customary land into the global economy; it perpetuates landlessness on the part of the ‘poor’ who might not withstand the vagaries of a formal land market. In this vein, the neo–liberal approach to customary land tenure reform under the policy will undermine development. I suggest that an effective initiative to empower the ‘poor’ would be the creation of a trust over all land in a traditional land management area with a traditional authority as the public trustee of his or her community. The trust must be created under statute and may retain the elements of customary land law. Macroeconomic strategies may be developed that promote microfinance initiatives that would complement customary land tenure. Keywords Land Reform, Customary Land Tenure Reform, Development, Malawi Author’s Note The article is a minimally modified version of the dissertation submitted to Warwick Law School, The University of Warwick in partial fulfilment of the requirements of the degree of Master of Laws (Law in Development). The dissertation was submitted to the School in September, 2005. LGD 2009 Issue 1 http://www.go.warwick.ac.uk/elj/lgd/2009_1/silungwe Refereed Article Silungwe, C. 2 Customary Land Tenure Reform and Development 1. Introduction Malawi adopted a National Land Policy in January, 2002. The policy, formulated under the aegis of the World Bank, is grounded in a neo–liberal approach to development. The thrust of the policy is that it ‘reflect[s] the imperative of changing economic, political and social circumstances’ in Malawi (Government of Malawi, 2002:8). The policy forms the basis for ‘a comprehensive land law with immense economic and social significance’ (Government of Malawi, 2002:8). It seeks to provide ‘a sound institutional framework for democratizing the management of land and introduces […] procedures for protecting land tenure rights, land based investments and management of development at all levels’ (Government of Malawi, 2002:8). The individualization, titling and registration of rights in land (‘individual title’) are a key tenet of the policy. This stems from the fact that neo–liberal discourse has influenced agrarian reform in the manner that individual title is lauded for its supposedly economic efficiency. In this neo–liberal framework, the predictability that is apparently characteristic of individual title is cherished as a basis for development. In this vein, customary land has been a site of ‘conflict’ in post–colonial States like Malawi where the competing interests of received law1 and customary law converge. The broad aim of this article is to examine whether market–led agrarian reform enhances or undermines development in a predominantly agrarian political economy. Hence, I critique the neo–liberal approach to customary land tenure reform in Malawi under the policy by addressing the following issues: the goal of neo– liberalism in light of development especially in post–colonial2 States like Malawi; the goal of customary land tenure reform in Malawi; the link between neo–liberalism and customary land tenure reform in Malawi; and the alternative forms of land tenure that may be compatible with development in Malawi. The issues are pertinent when one looks at Malawi’s economic indicators. The population of Malawi at the time of the last census in 2008 is estimated at 13.1 million. The annual intercensal population growth rate is 2.8 per cent (Government of Malawi, 2008). On the basis of national estimates carried out in 2002, the country’s population is estimated to double by 2020. The population is predominantly rural with approximately 85 per cent staying in the countryside. It is estimated that 65.3 per cent of the population is ‘poor’;3 with 28.2 per cent of the population living in ‘dire poverty’. Population density is estimated at 139 persons per square kilometre (Government of Malawi, 2008: 10) and is projected to rise to 220 persons per square kilometre by 2020 (Government of Malawi, 2002). The population pressure on cultivable land is critical and 40 per cent of the smallholder farming population has a landholding size of less than 0.5 hectare per household. In spite of massive inequality in land distribution, the smallholder farming population contribute 70 per cent of annual agricultural produce.4 The economy of Malawi is heavily dependent on agriculture which accounts for approximately 42 per cent of GDP and 90 per cent of the country’s exports. Tobacco is the main foreign exchange earner. Maize is the main staple food and is the most common crop in subsistence agriculture (Government of Malawi, 2002: 15–17). The centrality of land to the political economy will remain in the foreseeable future following the negative impact of the structural adjustment programmes which has led to the continued shrinkage of the manufacturing sector’s contribution to GDP, from 14 per cent in 2002 to 11 per cent in 2007 (Chinsinga, 2008:2). 1.1. Theoretical Framework The critique of a neo–liberal approach to development examines arguments advanced by neo–liberals like Fukuyama (1992) and Hayek on the one hand; and the approach of Escobar (1995) and analyses such as Adelman and Paliwala (1993) and Purdy (2004) on the other. I look at the goal of customary land tenure reform in the context of a post–colonial society like Malawi using critical legal theory advanced by the critical legal studies movement and the theorization of legal pluralism advanced by Benda–Beckmann (1988, 2000), Griffiths (1986), Merry (1988) and Boaventura Santos (2002). The article also looks at the issue of the commoditization of customary land as a mechanism for integration into the global economy in light of globalization literature especially Fortin (2005). However, the nature of land reform means that the various theoretical approaches overlap in the discussion of the issues. 1.2. Structure of the Article In section 2 of the article, I discuss the concept of ‘development’ as discourse. I proceed on the basis that ‘development’ is a post–World War II phenomenon which has been imposed on the global South through western hegemony. The imposition facilitates global capitalism (Escobar, 1995: 57, 98–99). Indeed if the imposition facilitates global capitalism in the broader scheme for the quest for ‘modernity’, the interests of the ‘poor’ are compromised. LGD 2009 Issue 1 http://www.go.warwick.ac.uk/elj/lgd/2009_1/silungwe Refereed Article Silungwe, C. 3 Customary Land Tenure Reform and Development In relation to land, there is a spurious link between individual title and economic growth. Notwithstanding various studies (Borras, 2005; Deininger and Binswanger, 2004; McAuslan, 2003; Platteau, 1996) that show that individual title does not automatically lead to economic growth, the persistence of market–led agrarian reform reflects the zeal of its proponents to integrate customary land into the global economy at the expense of the ‘poor’ (Benda–Beckmann, 2000; Fortin, 2005). This is the case because the ‘re–design of a property regime through individual title facilitates the flow of global capital’ (Benda–Beckmann, 2000: 3). In section 3, I trace customary land tenure reform under colonial and post–colonial land law and policy in Malawi. Colonial and post–colonial law and policy are similar as their aim has been the entrenchment of a ‘capitalist’ economy (Kanyongolo, 2004, 2005; Krishnamurthy, 1972). Customary land tenure was suppressed under the two periods as it had been adjudged anathema to development (Nankumba, 1986; Ng’ong’ola, 1986). While the colonial agenda benefited white settlers, post–colonial land law and policy benefits the ‘non–poor’ in the country (Kanyongolo, 2005:123). For the discussion of Malawi’s National Land Policy in section 4, I restrict myself to looking at the policy as it relates to customary land tenure reform and development. While acknowledging the underlying social and economic factors on land; inter alia, the effects of colonial and post–colonial land law and policy which led to landlessness of the ‘poor’, the policy has persisted with a neo–liberal conceptualization of land (Government of Malawi, 2002). Here I challenge the neo–liberal approach to customary land tenure reform and argue that a meaningful approach to security of customary land tenure entails the creation of a trust under statute that allows customary land law to govern that category of land.