Introduction

Customary land administration is highly contextualized and varies by tribe, chiefdom, and localized land pressures, such as mineral and other interests, the relative proximity to urban centres or transport routes, and localized population pressure.

By its customary nature, the land administration norms are not rigid, codified systems. Rather, the “principles” and “rules” of customary land tenure are often highly adaptive and in constant evolution, “changing in response to cultural interactions, socio-economic change, political processes, and environmental and demographic shifts” (Zambia Law Development Commission (ZLDC), 2014, p. 4).

Customary law is therefore “best conceptualised as a living law” (Ndulo, 2011).

The methodology for the certifying of customary land rights, however, needs to define which kinds of rights are going to be identified and certified. There is in fact a range of rights that could be subject to certification: communal rights, individual rights, concurrent rights to use the same land, etc. It is worth looking at these very briefly in order to be clear on how to approach these different rights in the certification process.

Communal rights

Some sections of customary land have been and remain reserved for ‘communal’ use. Communal rights, in which no community member has more right to access the resource than another, are open to every person in the community, and may be open to multiple communities/villages, even where they fall within the boundary of one village: animals may be grazed, fruits, herbs and timber gathered, fish caught, and water collected without limit in communal areas. This is so unless specifically limited in the interest of conservation, as determined by the chief.

The only way that access can be restricted is upon direction from the headperson or chief, which may be done in an effort to conserve or preserve some resource if it is under threat. Rather, one’s right to use communal resources, such as a well, river, grazing grounds, or forests, are dependent upon one’s membership in the community (Mvunga, 1980) and regulated by the local rules for the use of these resources.

In the village mapping phase of the TGCC project in Chipata, a number of these areas have already been identified and mapped. They include the dambo areas, forest areas, hills, cemeteries and areas that are bushland that has not been allocated to any single family or individual.

However, the village mapping processes have also identified that there are some instances where people are, in fact, using these areas on an individual basis, either for cropping or other purposes and have been doing so openly and for some time. The certification process therefore needs to incorporate a protocol for how these areas will treated. This is dealt with in this manual at various points (see Modules VII, X and XIII) but can be summarised as follows: the occupants of land falling within areas that have been identified as ‘communal’ or ‘protected’ or ‘reserved for future allocation’ will be allowed to participate in the process and to demarcate these areas on the map, and register their claim to them, but they will not necessarily be certified for their individual use.

Individual rights

Individual rights apply to a piece of land used for a homestead, where one builds a house and constructs an outdoor cooking area, maize storage bins, gardens, small pens for chickens, goats, cattle, etc. In such areas, it is generally recognized that an individual holds this piece of land and has exclusive rights to it.

The same regime of individual customary rights can also apply to agricultural land. Despite some enduring assumptions that all customary land was always ‘held communally’, White’s (1959) influential study, based on an extensive survey across Northern Rhodesia in the 1950s, indicates that customary land tenure among tribes of Northern Rhodesia was essentially individual:

“Specific land rights are acquired and exercised by individuals. Such land rights are attributes of persons, and they emerge as individualistic rights, except…where some element of lineage land holding is present” (p. 8).

White also describes how virgin land was generally acquired by breaking land where no one else had previously done so, and that once a plot of land is claimed, an individual’s right to it is secure.

Once an individual claimed a piece of land, it could be transferred to another person permanently as a gift, or temporarily as a loan. After death, land may be inherited, as per norms associated with a particular tribe. The abandonment of land was also a common way to terminate tenure. Notably, land was also transferred or sold for cash, contrary to assumptions that land was traditionally never sold (White, 1959). The National Land Titling Programme document (Ministry of Lands, Natural Resources and Environmental Protection, 2014) also recognises that the individualisation of rights has become an increasing feature of customary land tenure arrangements.

The primary focus of the certification process is to identify these kinds of customary land holdings, which are held legitimately by the individual members of a village. However, these individuals may claim this customary right on behalf of a broader family grouping, and the land may be being used by another member of that family. This confronts the project with the need to decide on the name of the person which will appear on the certificate. This may apply to husbands and wives, for example, or to children or other persons that are expected to inherit the right on the death of the primary holder.

While TGCC will not force joint certification or registration of both male and female members of households, the option for joint holding of certificates will be heavily promoted, and options for the registration of “Persons of Interest” will provide space to ensure that the rights of spouses, children, and other rights holders can be recognized. This approach also creates an opportunity to recognise multiple spouses in polygamous relationships (which is not a common custom in the TGCC area but may apply in other contexts).

Finally, it should be noted that the focus is on agricultural land holdings and that residential areas will not be included.

Concurrent rights

However, the individualised form of tenure described above does not necessarily equate to the holding of sole rights to the land. Rather, it may entitle the holder to primary rights to the land, giving one individual more rights to it than others. These concurrent rights can apply to the fields where crops are planted.

This means that an individual will hold a given piece of land for planting, but others still have the right to use that field at a certain time of year for some purpose. For example, on this type of land, everyone will know that a certain field belongs to an individual and will take extra caution to ensure their animals do not destroy crops during growing season. But on completion of the harvest, it is understood that others may freely pass through the fields and graze their cattle on the chaff and grain left behind. The cattle will contribute manure to the field, so it is a mutually beneficial arrangement. The field still belongs to the one who plants there (and has more rights to it than others), but the property rights pertaining to it are concurrent (Mulolwa, 2002). The nature of the concurrent rights may differ depending on the particular village or chiefdom; people may be permitted to operate simultaneously or in rotation, and the range of those who have access to the concurrent rights may also differ.

We will therefore encounter situations in which more than one person or family has interests in the same piece of land, and we are mindful of the need to ensure that certification does not change the existing arrangements for mutually beneficial access. The methodology incorporates this message, so that whilst these land areas will in principle be certified to their claimants, whatever the position is vis-à-vis the concurrent use of that land will not be affected by this.

Clan or family rights

There is another potential layer of ‘plurality’ – that of clan lands. In the contemporary era, there remains an interesting provision for clan land within chiefdoms that operates in parallel to the headpersons’ administration of land. Although this land is technically a part of customary territory (and therefore part of a chiefdom), it is considered to be more under the control of certain families or clans. To an outsider, there is no obvious difference, and each type of land is intermingled with the other. However, the separate areas that are ‘chief’s land’ and ‘clan land’ are known by the community members, and the norms concerning each are clear: families allocate and administer clan land, and the chief and headperson allocates the rest of customary land (Tucker, 2014).

These two are not in competition or in opposition to one another. People on clan land still respect and pay homage to the headperson and chief of their particular area, and they remain subject to customary leaders in every other way. The only difference is that chiefs and headpersons do not allocate clan lands.

The village mapping process has identified some areas that may fall into this category; there are villages which have stated that some areas of uncleared bush are in fact reserved for the future use or allocation by a particular family or clan. We expect that these areas will be claimed as part of the certification process by members of those clans/families, but we do not know whether they would in fact wish them to be certified by the Chief; we hope to learn more about the ways in which these lands can be certified as the process unfolds.

Eligibility for Certificates

In principle, any adult person will be eligible to ask for a certificate in respect to their customary occupation and use of a parcel of land.

The process is primarily designed to verify whether the members of a village consider the various claims within their village land area to be legitimate, under customary law. It does this through a number of mechanisms. The first is through the involvement of the headpersons of each village, working as part of a Village Land Committee (VLCs) that involves representatives of the village members. The second mechanism is through the opportunity, at a particular point in the process, for any person to make objections to a claim. The third mechanism will be through the ultimate authority of the Chiefs, who will be responsible for the final issuance of the certificates that have been vetted through the lower levels of customary land administration.

There will also be eligibility for non-residents to lay a claim to a customary land right within any particular village.

Responsibilities of certified land holders

The conditions attached to the Certificates will summarise the responsibilities which are attached to their documented customary right. The earlier work carried out by the CDLA, in identifying the village boundaries and important communal areas within these, also served to begin documenting local rules and regulations regarding land and resource access and use, and in respect to dispute resolution. These serve as the basis for the responsibilities that attach to the award of a Customary Land Certificate and which will be reproduced on them.