LAW AND AGRICULTURAL DEVELOPMENT IN ZAMBIA by ANTHONY CYRIL MULIMBWA A thesis submitted to the School of Oriental and African Studies, University of London in fulfilment of the requirements for the degree of Doctor of Philosophy in Law. Date: June, 1987 ProQuest Number: 11010493 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010493 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 ABSTRACT Agriculture occupies a very important place in the Zambian economy as a source of foreign exchange and as a source of food. Whatever the explanations that have been offered for low productivity - droughts, excessive rains etc., the legal framework for agriculture has been a relevant factor even though it has received the least attention from lawyers and economists alike. Law and development studies have only assumed importance in the last twenty years, that is, since the attainment of independence of many African countries. This thesis seeks to add to the growing literature on the effect of law on the agricultural development of Zambia. It is divided into five substantive chapters and a conclusion. The thesis opens with a general introduction showing the manner in which the colonial government used the law to encourage the development of a viable agricultural base from the time it assumed control from the British South Africa Company, through the depression years to the period leading up to independence. Chapter Two examines the land tenure systems that relate to agricultural land on State Land (formerly Crown Land). After independence government intervention through the land reforms of 1975 was calculated to give the State greater powers of land control. While the government has taken active steps to ensure the development of State Land, it has avoided interference with customary systems of landholding in the Reserves and Trust Land. Chapter Three, therefore, examines the systems of landholding in the Reserves and Trust Land and evaluates the 3 same in the context of agricultural development. It also draws attention to the need for government to extend control to these areas and to provide a proper legal framework to enable those who are dissatisfied with customary land tenure to obtain documentary titles to land. In order to speed up agricultural development, the role of the State has been extended to the provision of credit and marketing facilities. Chapter Four examines government credit policy as contained in policy statements as well as through the operation of its own specialised credit institutions and includes a discussion of the importance of various forms of security to all categories of farmers. Chapter Five examines the use by the government of statutory boards to control the production and marketing of agricultural commodities and the purposes of such control. The final chapter attempts to outline the reasons for the limited success of Zambian government policy in this area and demonstrates the limited role of law and legal solutions in promoting agricultural development. The law is dated as of March, 1987. TABLE OF CONTENTS PAGE ABSTRACT 2 ACKNOWLEDGEMENTS 11 TABLE OF ABBREVIATIONS 14 TABLE OF STATUTES 15 TABLE OF CASES 18 CHAPTER ONE: INTRODUCTION BRITISH LAND POLICY IN NORTHERN RHODESIA 19 A. GENERAL 19 1. Constitutional History 19 a) The British South Africa Company and Northern Rhodesia 19 i) North-Western Rhodesia 20 ii) North-Eastern Rhodesia 21 b) Northern Rhodesia Protectorate 23 c) Federation of Rhodesia and Nyasaland 25 d) The Emergence of Zambia 26 2. Sources of Law 27 a) Local Statute Law 27 b) English Law 27 c) Customary Law 29 d) Local and Foreign Case Law 30 3. Geography 3 0 a) Location and Population 31 b) Soils 31 c) Rainfall 32 d) Agricultural Systems and Land Use 32 e) Crops 33 B. THE DUAL SYSTEM OF LAND TENURE AND LAND ADMINISTRATION 35 1. General Policy: The Dual Economy 35 2. Native Lands 40 a) The Policy of Native Reserves 41 i) The Native Reserves Commission (Railway Line) 43 ii) The Tanganyika District Native Reserves 4 3 5 Commission 44 iii) The Native Reserves Commission, East Luangwa 4 5 iv) Evaluation of the Native Reserves Policy 46 b) The Policy of Native Trust Land 49 c) Position of Non-natives 51 d) Adjudication of Title Proposals 53 i) The Native Land Tenure Committee Report 53 ii) The Native Land Tenure Sub-Committee of the Native Development Board Report 56 iii) The Land Commission of 1946 57 iv) The Native Reserves and Native Trust Land (Adjudication and Titles) Ordinance, 1962. 60 e) Agricultural Credit for African Farmers 63 i) The Peasant Farming Scheme 63 ii) The African Improved Farmer Scheme 65 f) Marketing of African Produce 69 i) The Maize Control Board 70 ii) The Eastern Province Agricultural Produce Board 73 iii) The Agricultural Rural Marketing Board 74 iv) Co-operative Marketing Unions 75 v) The Search for an Overall Marketing Policy 77 1. Report of the East African Royal Commission 77 2. The Rural Economic Development Working Party 79 g) Summary of Changes over the Colonial Period 80 3. Alienated Land 81 a) Freehold versus Leasehold 81 b) Land Control and Development 83 i) Selection of Tenants 85 ii) Proposals for Taxation of Undeveloped Land 87 iii) The Agricultural Lands Ordinance 89 1. Establishment of the Agricultural Lands Board 9 0 2. Alienation of Land 91 3. Occupations of Holdings 93 4. Restraint on Alienation 95 5. Compensation 96 6 . Abandonment and Compulsory Acquisition 98 c) Provision of Credit 100 i) Pre-1946 101 ii) The Land Board and Credit 104 iii) The Land and Agricultural Bank 108 iv) The Agricultural Credits Ordinance, 1961 109 d) The Marketing of European Grain 11 q e) Summary of Changes over the Colonial Period C. CONCLUSIONS AND SUMMARY OF CHAPTERS 112 6 CHAPTER TWO: LAND IAW AND THE AGRICULTURAL DEVELOPMENT OF STATE LAND 135 A. INTRODUCTION 13 5 B. CONTROL UNDER THE AGRICULTURAL LANDS ACT 140 1. Composition of the Agricultural Lands Board 141 2. Distribution of Powers between the Board and the Minister 144 3. The Agricultural Lands Board and the Criteria for Land Alienation 152 a) Age and Character 156 b) Affirmation of Personal Occupation 157 c) Financial Standing 159 d) Qualifications or Experience 162 e) Other Facts 164 f) Land Accumulation 168 4. Enforcement of Compliance with the Conditions 171 5. Evaluation 173 C. COMPULSORY ACQUISITION AND LAND DEVELOPMENT 176 1. Compulsory Acquisition Prior to 1970 176 2. The Lands Acquisition Act, 1970 179 a) Procedure for Acquisition 179 b) Compensation 183 c) Settlement of Disputes 186 d) Implementation 188 i) Legal Constraints 188 ii) Practical Constraints 190 1. Multiplicity of Land Administration Agencies 190 2. Lack of Skilled Manpower 192 3. Delays 193 4. Financial Constraints 195 D. THE LAND TENURE REFORMS OF 1975 AND LAND CONTROL 197 1. Genesis of Land Tenure Reforms 19 7 a) The Land Commission of 1965 197 b) The Land Reform Proposals of 1970 199 c) Party Policy on Land Tenure 201 d) The "Watershed Speech", 1975 204 2. The Land (Conversion of Titles) Act, 1975 206 a) Application 206 b) Conversion of Freeholds into Leaseholds 207 c) Compensation 210 7 3. Land Control Under the Land (Conversion of Titles) Act, 1975 213 a) Restriction on Subdivision and Alienation of Land 214 i) Lack of Criteria for Determining Prices 216 ii) Absence of an Appellate System 219 iii) Absence of Enforcement Provisions 220 iv) Delays in Processing Applications for Consent 220 v) The Concept of Land Without Value 221 b) Restriction on the Number of Agricultural Holdings 226 c) Development Covenants 227 d) Extension of Control under the Land (Conversion of Titles) (Amendment) (No. 2) Act, 1985. 228 E. CONCLUSIONS 232 CHAPTER THREE; LAND LAW AND THE AGRICULTURAL DEVELOPMENT OF THE RESERVES AND TRUST LAND 246 A. INTRODUCTION 246 1. General 246 2. The Problem of the Concept of Ownership 248 B. CUSTOMARY LAND TENURE AND AGRICULTURAL DEVELOPMENT 252 1. The Nature of Customary Land Rights 252 a) Community versus Individual Landholding 253 b) Acquisition of Land 262 i) Acquisition by Occupation 262 ii) Transfer of Land by way of Gift 265 iii) Sale of Land 26 7 iv) Acquisition by Marriage 273 1. Virilocal Marriage and Landholding 273 2. Uxorilocal Marriage and Landholding 275 v) Acquisition by Inheritance 276 c) Current Trends in Customary Land rights 280 2. Customary Land Tenure and its Effect on Agriculture 284 a) The Nature of Customary Law 285 b) Absence of Security of Tenure 289 c) Absence of Title Deeds, Restriction on Dealings and Capital Formation 296 d) Parcellation and Fragmentation 299 e) Absence of Control 303 8 C. NON-CUSTOMARY INTERESTS IN THE RESERVES AND TRUST LAND 311 1. The Problem of Converting Customary Land into State Land 311 2. Provisions Regarding the Grant of Non-Customary Interests in the Reserves and Trust Land 314 3. Procedure for the Acquisition of a Grant 318 4. Rights and Obligations of Lessees and Licensees 324 5. Evaluation of the System of Grants in the Reserves and Trust Land 329 D. CONCLUSIONS 335 CHAPTER FOUR: AGRICULTURAL CREDIT FOR DEVELOPMENT 3 50 A. INTRODUCTION 350 1.