District Level Land Dialogue Report

Knowledge Innovation and Excellence

District Executive Committees’(DEC) Understanding of the Current Land Context, the Customary Land Act (2016) and their Desired Future in Phalombe District

Jessica Kampanje-Phiri, Daimon Kambewa, Mayamiko Nathaniel Kakwera, Masautso Chimombo, Hastings Chiwasa, Patricia Ngwale, Owen Lupesya, McDonald Galimoto

Malawi National Learning Alliance on Sustainable Agricultural Intensification

December 2019

Citation: Jessica Kampanje-Phiri, Daimon Kambewa, Mayamiko Nathaniel Kakwera, Masautso Chimombo, Hastings Chiwasa, Patricia Ngwale, Owen Lupesya, McDonald Galimoto (2019. Community Level Stakeholders’ Understanding of the Current Customary Land Context, the Customary Land Act (2016) and their Desired Future in Phalombe District. Malawi National Learning Alliance on Sustainable Agricultural Intensification Land Dialogue Report No 10, December 2019. LUANAR, Lilongwe and University of Malawi, Zomba, Malawi.

Acknowledgements: Thanks go to the Sustainable Agricultural Intensification Research and Learning in Africa (SAIRLA) programme for initiating the research in 2016; to the UK Department for International Development (DFID), for financial support; to WYG and the Natural Resources Institute (NRI) for their support, guidance and encouragement; to the members of the District Executive Committee (DEC) in Phalombe District in Malawi who participated in the dialogue session; and reviewers for useful comments.

About SAIRLA - www.sairla-africa.org Sustainable Agricultural Intensification Research and Learning in Africa (SAIRLA) is a five-year, DFID-funded programme (2015–2020) seeking to generate new evidence and design tools to enable governments, investors and other key actors to deliver more effective policies and investments in sustainable agricultural intensification. The programme covers six countries in sub-Saharan Africa – Burkina Faso, Ghana, Ethiopia, Tanzania and Zambia.

Over the course of the programme, SAIRLA partners have generated new evidence and design tools to enable governments, investors and other key actors that are supporting agriculture commercialisation and intensification to deliver more effective policies and investments. As part of this work, SAIRLA supports eight research projects that have successfully generated new evidence, and five national learning alliances that have been established to channel high quality evidence into national investment and policy making processes using a social learning approach.

Table of Contents 1. Introduction ...... 5 2. Background to the dialogue process ...... 6 3. The Customary Land Act (2016) ...... 7 3.1 On-going processes in relation to the Customary Land Act (2016)...... 8 3.2 Major, relevant and related provisions in the Customary Land Act (2016) ...... 8 4. Methodology ...... 9 4.1 Social characteristics related to land issues in the area ...... 9 4.2 Major agricultural activities/projects in the area...... 10 4.3 Activities related to implementation of the CLA in the area ...... 10 4.4 Description of the stakeholders consulted ...... 10 4.5 Method for district consultations...... 11 5. Results of Focus Group Discussions...... 12 5.1 Consultations with the Police and Judiciary in Phalombe ...... 12 5.1.1 Awareness and knowledge about the CLA ...... 12 5.1.2 The current situation of land issues – access/ownership, tenure security, control over customary land for the poor, youth and women ...... 12 5.1.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 to 10 years ...... 13 5.1.4 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth ...... 13 5.2 Consultations with the Government District Officers ...... 13 5.2.1 Awareness and knowledge about the CLA ...... 14 5.2.2 The current situation of land issues – access/ownership, tenure security, control over customary land for the poor, youth and women ...... 14 5.2.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 to 10 years ...... 16 5.2.4 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth ...... 16 5.3 Consultations with the Private Sector, NGOs, Youth Representatives and Ward Chancellors ...... 16 5.3.1 Awareness and knowledge about the CLA ...... 16 5.3.2 The current situation of land issues – access/ownership, tenure security, control for the poor, youth and women ...... 16

5.3.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 years ...... 19 5.3.4 Changes would love to see in access/ownership, tenure security, control for the poor, the youth and women in the next 10 years and beyond ...... 20 5.3.5 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth ...... 20 6. Plenary Discussion ...... 20 7. Conclusions of the Facilitation Team...... 21 8. References ...... 23 9. Appendix 1: Checklist for district and community stakeholder engagement meetings...... 24

1. Introduction This report is the result of the dialogue sessions on the Malawi Customary Land Act, 2016 held by the Facilitation Team of the Malawi National Learning Alliance (NLA) with various stakeholders. The stakeholders have discussed different contestations and generated common understanding on customary land in order to contribute to the development of a land legislative and governance framework that enables more equitable outcomes among the various stakeholders. The aims of the dialogue sessions are:

i. To provide evidence for and illustrate the complexity of the land situation and reforms in Malawi.

ii. Make the case that this complexity cannot be dealt with in a linear way but needs to be considered within an open and transparent multi-stakeholder dialogue.

The specific objectives for the dialogue mediated by the NLA are:

• To give stakeholders a platform to share views, perceptions, fears and hopes regarding the Customary Land Act, 2016. • To enable stakeholders to better understand each other’s voice, views, perceptions, fears and hopes about Customary Land Act, 2016 as a basis for generating consensus for developing a mutually acceptable land legislative and governance framework • Identify opportunities and means to enhance future dialogues

The specific expected outcomes of the dialogue sessions include:

• Contextual situation and issues regarding access, control and tenure security over customary land, stakeholder agreements and disagreement identified. • The desired future regarding the situation with customary land, stakeholder agreements and disagreements identified. • Stakeholders’ perspectives on Customary Land Act, 2016 and the extent to which it addresses current and future situations and aspirations identified. • Possible pathways towards resolving the land contests and issues that stand in the way of a mutually acceptable land legislative and governance identified.

2. Background to the dialogue process In Malawi the NLA Facilitation Team embarked on dialogue sessions on customary land as part of the programme on Sustainable Agricultural Intensification Research and Learning in Africa (SAIRLA) funded by the UK Department for International Development (DFID). The programme has grown out of the global challenge for agriculture in which production must increase to meet the food and nutritional security demands of a growing population, but do so in a sustainable fashion. The aim of the SAIRLA programme is to generate, share and facilitate use of knowledge by decision makers (policy makers and investors) to develop Sustainable Agricultural Intensification (SAI) in ways that enable poorer smallholders, particularly women and youth to participate in and benefit from agricultural development.

In Malawi the wind of SAI is blowing at a time when there is a drive to commercialise agriculture. The Malawi Government (GoM), with support from development partners, has embarked on an ambitious programme of transforming the agricultural sector. The ambitions are well spelt out in policy pronouncements such as the Malawi Growth Development Strategy (MGDS), National Agricultural Policy (NAP), National Export Strategy Paper (NESP) and the National Agricultural Investment Plan (NAIP). The common thread in these policy and investment strategy papers is that agriculture must be commercialised and productivity should be enhanced. Key in the policy aspirations is the need for clearly defined property land rights, land being a key resource for agricultural commercialisation. The Malawi Government has been engaged on land reforms since the late 1990s, and in 2016 enacted the Customary Land Act (CLA). Key issues dealt with by the CLA relate to land registration, land conflict resolution bodies, access to land (by women), security of tenure and land governance.

The NLA dialogue sessions on customary land draw on equity perspectives to construct evidence of what does and what doesn't work in relation to the propositions of the CLA. The CLA is critical because customary land remains the most important productive asset for the majority of Malawians. A high proportion of the land area in Malawi is managed by smallholders (between 65% and 75% is customary land according to Chirwa (2008), GoM

(2008) and GoM (2002), although this situation appears to be rapidly changing (Jayne, et al., 2016)).

The dialogue sessions have been conducted through a multi-stakeholder platform for social learning processes called the National Learning Alliance (NLA) on SAI. The stakeholders are decision-makers with interest in and/ or influence on equitable SAI. They are at local, district and national levels and they include government, non-governmental organisations (NGOs), academia, media, research, private sector, chiefs, women’s groups, local development committees, and the youth. Through these dialogue sessions:

• different perspectives on customary land have been shared and discussed • scenarios and options on customary land have been jointly assessed • more inclusive /joint decision-making on customary land has been discussed • capacity and commitment to act has been discussed. 3. The Customary Land Act (2016) The customary land question in Malawi remains unresolved and it is complex. The regime has faced challenges including purported inherent insecure customary land rights. It is evident that Malawians are becoming concerned about the current land situation, particularly with respect to losing land to foreigners, although there is also a trend regarding acquisition of land by Malawian middle-scale land users (Jayne et al., 2016).

Efforts to formalise land rights started in colonial times with “certificates of claim” as an acceptable basis of occupation of land (The Land Ordinance, 1951). The Land Act (1967) superseded the Land Ordinance (1951) and provided for registration of title. In 1996, the Malawi Government steered comprehensive Land Policy Reforms through a Presidential Commission on Land Inquiry (PCLI) in recognition of land pressure and tenure insecurity. In 2016 a new Customary Land Act (CLA) was enacted by Parliament with the aim of formalising land ownership and governance. Despite these efforts, divided opinions and views still exist: some stakeholders have supported while others have resisted the new land legislative and governance framework.

3.1 On-going processes in relation to the Customary Land Act (2016) Following the adoption of the National Land Policy (GoM, 2002) the Malawi Government embarked on reviewing, amending and developing new land and land related laws. The key provisions of the CLA focus on land registration, land conflict resolution bodies, land access (women rights), security of tenure, land governance and compensation.

The provisions of the CLA have been contested throughout this process: by some NGOs, tribal groupings and chiefs. Government of Malawi and some of its development partners have begun to implement the law with pilot projects delivered by civil society organisations (CSOs) in selected districts of Msimba, Kasungu, Phalombe, Chikwawa in awareness of of this contestation. The pilot projects are intended to provide Government with evidence and lessons on how the CLA is working. Government and its partners intend to use the evidence and lessons to inform the implementation of the CLA in the rest of the country (Deputy Commissioner of Lands, personal communication, 2019).

3.2 Major, relevant and related provisions in the Customary Land Act (2016) The major provisions of the CLA include the creation of Traditional Land Management Areas (TLMAs) and land registration in form of customary estates. The CLA provides for title registration throughout the country for all land categories including Customary Estates. All land shall be subject to registration for purposes of determination of ownership. This supersedes the Customary Land Act, 1965 which recognised land ownership according to customary arrangements. Some specific provisions of the CLA, which are particularly relevant to the dialogue work are set out in Box 1.

Box 1. Some relevant Customary Land Act provisions (original provision number has been retained) 4. Land committees shall, subject to the provisions of this Act, be responsible for the management of all customary land in a Traditional Land Management Area. 5. (1) There shall be established in each Traditional Land Management Area, customary' land committees at a group village headman level. 5. (2) A Land Committee shall consist of: a) A Group Village Headman who shall be the chairperson; b) Six other persons elected by and from within the community, at least three of whom shall be women 8. (1) There shall be appointed a land clerk for each Traditional Land Management Area to serve as a secretary to any land committee appointed for the purposes of this Act. 20. (1) A customary estate shall be allocated by a land Customary committee 21. (1) A person, family unit, a group of persons recognised under customary law or who have formed themselves together as an association, a co-operative society or as any other body recognised by any written law, may apply to a land committee responsible for that land for the grant of a customary estate 24. (1) A land committee may require the payment of a fee on the grant of a customary' estate to an organisation or body. 26. A land committee may require the payment of annual rent for customary estates granted to an organisation or a body. 44. (1) There shall be established in every Traditional Land Management Area, a customary land tribunal to adjudicate on any disputes concerning customary land in the area. (2) A customary land tribunal shall consist of— a) A presiding chairperson who shall be the Traditional Authority responsible for the area; and b) Six members of the community nominated by the Traditional Authority and approved by the Commissioner, at least three of whom shall be women 46. (1) There shall be established in every district, a district land tribunal which shall consist of the following— a) A presiding chair person who shall be the District Commissioner responsible for the District; b) Up to three Traditional Authorities; c) Three reputable persons that come from and reside in the district, two of whom shall be women, who shall be in office for a renewal term of three years; and d) The District Land Registrar who shall be the secretary 48. (1) There shall be established a Central Land Board consisting of the following— a) Resident Magistrate who shall preside over proceedings of the Board; b) Three Traditional Authorities, one from each region of Malawi, one of whom shall be a woman; and c) Two other members with good standing in society, one of whom shall be a woman.

4. Methodology 4.1 Social characteristics related to land issues in the area According to NSO (2019), Phalombe district covers an area of 1,323 km² with a population of 429,450 in 2018 (a 37% increase on the population of 315,185 in 2008) giving a population density of 325 per km² (compared to 238 per km² in 2008). The main ethnic groups are Lomwe, Yao and Nyanja. Chinyanja is the most commonly used language. Chilomwe and Chiyao

9 are the other dominant languages with Chichewa and English also being spoken, (Nelson, et al. 2018). The district is bordered by Mozambique to the eastern side, Zomba to the north and Mulanje to the west and south.

A high proportion of the district is under cultivation and human settlement, while the rest is wetlands, that include Lake Chilwa and Mpoto Lagoon, and forest reserves, the biggest of which is the Michesi Forest Reserve on Michesi Mountain (Taulo, et al., 2008). Agriculture is the main livelihood in the district and maize the dominant crop. 96% of households are engaged in agriculture, with an average area of land per household of 1.1 acres (NSO, 2017).

The district is mostly dominated by the Lomwe tribe who largely follow a matrilineal system of inheritance and marriage. According to the Lomwe culture, therefore, a woman owns the land which she inherits from her mother or grandmother. Again, according to the Lomwe culture, upon getting married, a man leaves his home and resides in his wife’s home. The man therefore uses the land belonging to his wife. With regards to the youth, a girl inherits the land from her mother while boys usually use the land belonging to their parents until the time they get married. At that point young men use the land belonging to their wives.

4.2 Major agricultural activities/projects in the area Phalombe district, as other parts of the country, predominantly depends on agriculture for livelihood and maize is the dominant crop grown (Nelson, et al. 2018). Small land holding sizes are common place in the area and smallholder farmers grow cash crops such as tobacco, maize and legumes (i.e. beans, groundnuts, soybeans).

4.3 Activities related to implementation of the CLA in the area Phalombe is one of the pilot districts for the implementation of the CLA. The pilot project is being implemented in Chiringa area in TA Nazombe by LandNet and CEPA. The project has demarcated the land in one Group Village Headman into a Traditional Land Management Area. They have also established Land Management Committees.

4.4 Description of the stakeholders consulted The meeting took place on 6th March 2019 at a rented venue near Phalombe District Assembly offices. The participants included members of the District Development

Committee comprisingofficers from government departments in Phalombe, including the District Social Welfare and Gender Office, District Community Development Office, District Lands Office, Agriculture, Council, police and judiciary (magistrate), private sector and representatives of Non-Governmental Organisations. Table 1 provides details of the stakeholders consulted.

During the discussions, the participants were asked to:

• Indicate if they were aware of the Customary Land Act, 2016 and if they have knowledge about the contents of the Act. • Discuss the current situation in the area with regards to access/ownership, tenure security and control • Discuss their aspiration/changes they would like to see in the next five years and they would love to see in the next 10 years to come.

Table 1 Stakeholders consulted Stakeholder group Detail Male Female

District Development Government Officers 11 2 Committee members Community Based Organisations/NGOs 12 2

Private Sector 5 1

Media 1 0

Total 29 5

4.5 Method for district consultations The Facilitation Team used a modified outcome mapping approach (OMA) to initiate a dialogue on the CLA. The stakeholders were divided into three focus groups (police and judiciary; government district officers; private sector, NGOs, youth representatives and Ward Chancellors) to facilitate discussions. Each focus group was facilitated by two members of the Facilitation Team. In the groups, stakeholders reflected on the current situation of land themes – access/ownership, tenure security, and control for the poor,

11 youth and women. The stakeholders then reflected on changes they would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 to 10 years. Finally, the groups were asked to assess the implications of proposals in the CLA on access/ownership, tenure security and control by the poor, women and the youth. See Appendix 1 for the checklist that was used for the focus group discussions (FGDs). After the FGDs, the groups presented their discussions in plenary, where members where given the opportunity to comment on each other’s’ presentations. Video and audio interviews were recorded as part of the process of generating evidence on how the CLA is envisaged to impact on land access, land tenure security and access to land.

5. Results of Focus Group Discussions 5.1 Consultations with the Police and Judiciary in Phalombe 5.1.1 Awareness and knowledge about the CLA The police and judicial officers reported that they have heard about the Customary Land Act (2016). However, they do not know much about the proposals in the law.

5.1.2 The current situation of land issues – access/ownership, tenure security, control over customary land for the poor, youth and women The Police and Judicial officers reported that, currently, according to the Lomwe culture, a woman owns land and she passes it to her daughters. A man uses the land that belongs to his wife. Sometimes a man can get the land from the village headman. But it is rare that a chief can allocate new land to the man because land is not available. The youth work together with their parents up to the time they get married.

In terms of tenure security, the Police and Judicial officers indicated that currently the situation is that land is secured in the following ways:

• By physical features such as trees planted on the boundaries of the fields to reduce encroachment • The lineage (mbumba) plays a role in making sure that no one can grab the land from any legitimate owner. This measure has been in use for a long time. It is the reason women have not lost the land. But in light of the behaviour of the head of the lineage (mwinimbumba), the officers are concerned that the mbumba is becoming weak.

In terms of control over the land, the officers indicated that mwinimbumba has too much power over the land. He can even take away the land from his sisters and chase her husband from the village. At the same time, a woman has power over the land. But the man (husband) does not have powers. For example, he cannot sell the land because it belongs to his wife.

5.1.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 to 10 years The Judicial and Police officers indicated that in the next five to ten years they would like and love to see existing modes of access and ownership continue, but the land should be registered by both a man and woman so that a man’s rights can be protected.

In terms of security of tenure, the officers said that in light of the behaviour of the mwinimbumba the mbumba is becoming weaker in its ability to protect women’s rights to land. The officers would therefore would like and would love to see women being able to register and lease their land so that they are protected.

With regards to changes in control over land, the police and judicial officers would like and love to see that a husband and wife should control the land. The woman should also have more control over the use of the land and the benefits from it. Currently, women have little say on how to use proceeds from the fields, although they are the owners.

5.1.4 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth The participants indicated that the proposal to register land is good as it will provide full individual ownership of the land. However, the officers are concerned that individual ownership may provide people with too much freedom to sell the land. To avoid this (as the case is currently), no-one should be allowed to sell the land regardless of situation. Thus, they recommended therefore that the lease should be for 99 years.

5.2 Consultations with the Government District Officers The participants in the consultations with district government officials comprised 13 members from different government department in Phalombe district. Two of the thirteen members were young women. The following questions with regards to customary land were posed and discussed:

i. Are you aware of the Customary Land Act (CLA), 2016? If yes, what are the key provisions of the Act?

ii. What is the prevailing situation in the area with regards to access/ownership, tenure security and control?

iii. What are your aspirations/changes they would like to see in the next five years, and they would love to see in the next 10 years to come?

What follows are the results of the discussions aligned to the three questions above.

5.2.1 Awareness and knowledge about the CLA When participants were asked if they were at all aware about the CLA, there was a high positive response rate among this group. All of them had heard of the new land law. With regards to spelling out the specificities of the CLA, only 4 out of the 13 participants (30.8%), were able to do so. In addition to the general provisions of the CLA, participants were able to articulate that the Act necessitated registration of land and to support that process, there is a requirement to have land governance structures at community and district level.

5.2.2 The current situation of land issues – access/ownership, tenure security, control over customary land for the poor, youth and women In terms of land access, the team learnt that according to the Lomwe culture, land is accessed through maternal lineage. Thus, women own land through inheritance and men receive access to land upon getting married. The group indicated that lately the practice of accessing land by buying and renting has also become popular, particularly in areas close to trading centres and at district headquarters. The drive for this practice was explained as coming from employees of the various local and international organisations working in Phalombe as well as the business community members. Usually the land which is rented is used for farming activities whilst most land that is bought is used for constructing up business structures and/or homes. Table 5.1 below summarises the discussions on the current status of access, tenure security and ownership of land by men, women, youth and the poor in Phalombe district.

Table 2 Summary of discussions with government district officers on the status of access, tenure security and control over the land in Phalombe district Access to land Women Men Youth Poor Marriage & Buying; Use their Inheritance from parents Inheritance from parents’ land and given by chiefs parents & clan; buying and renting in. Ownership of land Women Men Youth Poor Usually own land that Cannot own land They own land though the They own the land has been purchased unless there are group contemplated that it accessed through by them. They have girls and of will be difficult for these family. However, the very limited chances reasonable age people to own land in the ownership is limited to inherit customary future. Their situation is to user rights land except for precarious for the because if the situations where they observation that they woman decides to have no female usually have many dispose the land her siblings. children which entails family (uncles and splitting the land into sisters) have a strong small plots. They also say on whether such have limited cash to rent decision can be in and buy land. taken or not. Tenure security Women Men Youth Poor They reported that Nothing unique Nothing unique for the Their land is usually land owned by men is for the youth was youth was reported. secured through the usually secured reported. clan and family through the sales system. Use of agreements followed landmark features by their family lines. was also reported as They also put up one way of securing some beacons to land. Trees, contour mark and secure the ridges and vetiver land grass were reported as some landmark features.

5.2.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 to 10 years Just as the Judiciary and Police officers discussed above, most of the government officials in this group were of the view that in the next five to ten year they would like and love to see that the existing modes of access and ownership continue but the land should be registered by a man and woman so that a man can be protected as well. Furthermore, this group pointed out that, since land is already scarce in this area, the government should still promote the program of “Kudzigulira Malo” where volunteers who were willing to be re-settled elsewhere in the country where land is still available, should be given an opportunity to do so.

5.2.4 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth The government officers were of the view that government needs to intensify awareness of the new land law and the implementation of the provisions there in failure which it would result into a lack of mechanisms to resolve land conflicts, since magistrate courts are the only ones mandated to formally preside on cases of land disputes, apart from land tribunals, which are not yet in place in most areas of Phalombe. If this scenario goes unattended, the officers did foresee that chaos might emanate from grieved parties whose cases would go unresolved for a long time.

5.3 Consultations with the Private Sector, NGOs, Youth Representatives and Ward Chancellors 5.3.1 Awareness and knowledge about the CLA Of the 8 participants in the discussions, none of the participants reported being knowledgeable on the 2016 Customary Land Act. However, 80% of the participants reported to be aware that Malawi has a new land act and that in some parts of Phalombe it has already begun to be implemented.

5.3.2 The current situation of land issues – access/ownership, tenure security, control for the poor, youth and women On the theme of access to land, the participants pointed out that Phalombe follows a matrilineal system of inheritance. It was learnt that there is a land shortage in Phalombe and this has made land a very sensitive issue. It is business people with money that are

16 buying land in the area which has consequently made land become very expensive. The participants reported the following ways of through which people access land in Phalombe:

i. Inheritance from parents – women and girls inherit land from their parents. It was learnt that families often cultivate land belonging to the mothers’ side. When the daughters become of age and are ready to be independent, the female children inherit land from the mother’s side. In cases where the parents purchased land, female children in the house also inherit the land. Men or male children do not inherit land from their parents as they are expected to access and use land that belongs to their (prospective) wives. Women also inherit land from their husbands in cases where the husband purchased land.

In cases of marital separation, divorce or widowhood, men do have access to land on temporary basis. Under this arrangement, men are allowed, by the clan leaders and the women’s relatives, to have temporary user rights over the customary clan land until they remarry. In cases where men do not remarry, the female clan members related to his deceased wife can revolt, taking away the land he is using as a way of forcing the men to remarry and ‘leave their land for them’.

ii. Purchasing land – both men and women are buying land in Phalombe. This is not peculiar to migrants in Phalombe because even the native residents of Phalombe are buying land. It was learnt that it is becoming very common for men to purchase land at a neutral place (this land belongs to neither the wife’s side nor the husband’s side) and settle on it. This assures men that they will not lose their property and investments on the land in the event of divorce or death of the wife. Some young people with money from their businesses or from South Africa earnings also buy land, often near big trading centers like Phalombe district headquarters, Migowi, Chiringa and Holy Family. iii. Renting land – Women, men, and the youth rent land, especially those households who are engaged in commercial agriculture. Unfortunately, even the poor, who have inadequate land and are often food insecure, are forced to meet their immediate

needs by renting out their land to civil servants, NGO workers or business people with money. This traps them into a cycle of food shortage. iv. Land grabbing – Men and chiefs were also reported by the participants to be acquiring land by using force, grabbing land from helpless, voiceless vulnerable poor members of society like orphans, the widows, and the ultra-poor. The participants bemoaned high levels of corruption among duty bearers in the justice system which prevents the victims of land grabbing from accessing justice.

On the theme of control over land, the Phalombe participants from the CBOs, business community, Youth Arm Organisation and the elected ward counsellor unanimously agreed that, in stable marriages, men enjoy controlling powers over land issues in Phalombe at family level. This is despite the land belonging to the wife’s clan. Men make most of the decisions with regard to what crops to grow or what methodologies to use. Married men lose their control over land when marriage conflicts emerge because, in this situation, wives begin to stamp their authority over land which essentially belongs to their clan.

At clan level, land is used by the women belonging to the clan. However, such women cannot make major decisions with regards to renting out the land or selling it. It is the responsibility of the men in the clan led by the clan male leader to make such decisions.

The participants in the discussions reported that, at community and district level, the duty bearers like chiefs, and government officials have a lot of control power over land in the district. In addition, because of their easy access to the powerful figures like chiefs and senior government officials, the rich also have a lot of control over land in Phalombe.

Security of tenure was also discussed at length by the participants during the dialogue sessions. Members were of the view that men in Phalombe do not have security of tenure over their land. One participant said the following which was agreed to by all the men in the group:

“Here in Phalombe, men are slaves. They invest on land belonging to their wives’ side and when fruits of their labour starts appearing, the men are chased away like thieves in the name of divorce conceived on very flimsy reasons. Even when men

buy land, the land will still go back to the wives’ side because children here belong to the woman side and when these children inherit the land, they inherit it back to their mothers’ side”. (Phalombe Private Sector FGD,06/03/19)

While women enjoy security of tenure for their land in Phalombe, participants felt that their experience in the district has shown that such security of tenure is not founded on strong and reliable evidence. They said that such security relies on people’s memory of the historical lineage of ownership of the land parcels. Security of tenure has weakened in Phalombe because powerful figures like chiefs and government officials are increasingly abusing powers, snatching away land from poor and vulnerable members of community like orphans, widows, and the ultra-poor. For this reason, the people of Phalombe are excited at passing of the CLA which they see as a solution to the problem of weak land tenure security. The participants argued that the customary land registration certificates proposed under the Act will be reliable and strong evidence for land ownership which would even be used in court as evidence in case where grabbers attempt to snatch land from the vulnerable women, orphans and the ultra-poor.

5.3.3 Changes would like to see in access/ownership, tenure security, control for the poor, youth and women in the next 5 years Members of Phalombe Youth Arm Organisation pray that in the next 5 years, policies and laws on land in Malawi will be designed in a way that ensures that the youth have easy access to and control over land, and that their ownership of such land will be secured with title deeds. They pointed out that the future of agriculture lies in the youth and, as such, the youth should be a priority on issues to do with land.

The participants also emphasised that, to prevent conflicts, it is important that it should be compulsory for the parties involved to sign legally-enforceable agreements and contracts in the witness of chiefs and other trusted people whenever people are engaging in land transactions such as selling or renting of land. It is becoming common for land owners to sell the same piece of land to two or more buyers.

The participants in the dialogue session wanted to see all customary land registered and its owners having proper land registration certificates in the immediate future. In their opinion, this will ensure strong land tenure security. However, the participants were not

19 sure the about the costs that the poor will have to bear if they are to register their land and subsequent renewal of registration of their land. They were also concerned that the process of registering land should be simple and fast.

5.3.4 Changes would love to see in access/ownership, tenure security, control for the poor, the youth and women in the next 10 years and beyond Representatives of the business community, community-based organisations, elected ward counsellor and the youth in Phalombe all agreed that it will be difficult for them to foresee what the situation on land issues would be in the next 10 years. But, after every five years, government and other stakeholders should review all land laws and policies in the country to reflect the existing realities and concerns of the times.

5.3.5 Implications of proposals in customary law on access/ownership, tenure security and control by the poor, women and the youth From the opinions and views expressed during the dialogue meeting, it is clear that the participants are in favour of the implementation of the CLA and its structural provisions. However, based on the fears that the participants expressed, it seems that there is need for Government and Ministry of Lands to address misconceptions about payments that land owners will make to the government once they register their land.

6. Plenary Discussion Participants indicated that the proposal to register land is good as it will provide full individual ownership of the land. However, the officers were concerned that individual ownership may provide people with unfettered freedom to sell the land. To avoid this, as the case is currently, no one should be allowed to sell land regardless of situation. The lease should be for 99 years.

In the plenary, some female officers did not agree that women chase away their husbands once the man makes successful investments at his wife’s home. They argued that these days women are just empowered with knowledge of their rights and do not tolerate an abusive husband.

Lands officers dispelled fears that the poor will be required to pay for the registration of land or renewal of land registration, saying everything will be free. Service fees will only be required when selling land or any transaction requiring change of ownership.

Most participants in plenary agreed that indeed land registration will be important and useful in Phalombe. However, they bemoaned the lack of civic education on the substantive provisions of the CLA, arguing that three years after its passing and presidential assent, even key stakeholders and government staff at district level have not been trained on it.

7. Conclusions of the Facilitation Team Generally, Phalombe district stakeholders consulted warmly welcome the 2016 customary land act as they see it a solution to issues and challenges surrounding land access, control, and tenure security in the district. Specifically, with regards to access and control over land, just as observed in other matrilineal settings, women in Phalombe district generally access land mainly from inheritance from their maternal relations/parents while men were dependent on marriage, renting or purchasing of land to gain access. Despite women owning most land in Phalombe, it was observed by the team that men usually make important decisions over land use and disposal, mainly in the capacity of husbands and clan elders respectively.

It was evident that most people consulted at district level were in support of land registration as the best way of achieving security of tenure. However, concerns were raised by different stakeholders on whether this individual tenure security is sustainable in the long run, since it will give liberty to individuals to sell land as they wish and the poor might be the ones to have no means of accessing land. Additionally, there were concerns that registration of individual parcels of land would give foreigners wishing to purchase land an advantage over locals from the area, hence selling the country out. Concerns were also raised in relation to the ability of the poor to pay land registration fees.

Based on these consultations it is evident that the aspirations of the Phalombe district stakeholders for the next 5 to 10 years is to see that men and women, youth and the poor are able to access land equitably and register their land without further impoverishing those that are already poor. As such, stakeholders consulted clearly stipulated that government and its NGO partner organisations (such as Landnet, Oxfam, NICE), need to ensure that every stakeholder is consulted and their views considered in the implementation of the Act. Community awareness and training of key government staff at

21 the district level is was said to be very crucial to the implementation of the CLA. Overall, it seems that, in Phalombe, the CLA will be empowering of the men in this matrilineal part of Malawi, where married men have been at receiving the end of prevailing land practices that tend to subjugate them.

8. References 1. E.W. Chirwa. 2008. Land Tenure, Farm Investments and Food Production in Malawi. Briefing Paper No. 18, Research Programme Consortium for Improving Institutions for Pro-Poor Growth (IPPG), Manchester 2. Government of Malawi, 2002. Malawi National Land Policy 3. Government of Malawi, 2008. Ministry of Finance. ‘Malawi Social Action Fund: Resettlement Policy Framework. RP 670.’ Lilongwe: Ministry of Finance 4. National Statistical Office (NSO). 2008. Population Projections. Zomba, Malawi. 5. National Statistical Office (NSO). 2017. Integrated Household Survey 2016-17. Zomba, Malawi 6. National Statistical Office. 2019. Malawi Population and Housing Census report – 2018. Zomba, Malawi. http://www.nsomalawi.mw/images/stories/data_on_line/demography/census_2018/2 018%20Malawi%20Population%20and%20Housing%20Census%20Main%20Repor t.pdf 7. V. Nelson., R. Lamboll & Miriam Joshua.2018. Evaluative Learning Report on Nthundu Farmer Field School, Phalombe District. NRI and Chancellor College. 8. T.S. Jayne., J. Chamberlin., L. Traub., N. Sitko., M. Muyanga., F. K. Yeboah., W. Anseeuw., A. Chapoto., A. Wineman., C. Nkonde., R. Kachule. 2016. Africa’s changing farm size distribution patterns: the rise of medium-scale farms. Agricultural Economics 47 (2016) supplement 197–214 9. J.L. Taulo, R.W. Mkandawire and K.J. Gondwe. 2008. Energy policy research baseline study for Mulanje and Phalombe districts. Submitted to Mulanje Mountain Conservation Trust with Financial Support from Practical Action JULY 2008. https://ec.europa.eu/energy/intelligent/projects/sites/iee- projects/files/projects/documents/e- mindset_final_energy_policy_baseline_report.pdf

9. Appendix 1: Checklist for district and community stakeholder engagement meetings Preamble

During the introductions with the community or district stakeholders explain the aim of the meetings and the methodology to be used. Split the community stakeholders into Focus Groups of youth, women, Area Development Committee and chiefs. District stakeholders should be split into civil servants, NGOs. Use the matrix here below to guide the discussions. Mention to the entire group that after the FGDs with the split groups, the results will be presented in plenary.

Key questions

Modified Outcome Mapping Matrix

Describe access to land over the timelines given in the tables below. For each change in access to land per respective group of people in the first column provide reason (s).

Access of land Current Next five years Next 10 years Future situation Women Men Youth Chiefs

Describe land tenure security over the timelines given in the tables below. For each change in land tenure security per respective group of people in the first column provide reason (s).

Land tenure Now Next five Next 10 years Future security years Women Men Youth Chiefs

Describe control over land over the timelines given in the tables below. For each changes or failure to change in control over land over per respective group of people in the first column provide reason (s).

Control over Now Next five Next 10 years Future land years Women Men Youth Chiefs