Constitution of Zambia
The Constitution of Zambia recognizes the right to property and protects landholders from being deprived of their land rights unless such deprivation occurs according to law. Article 16 of the Constitution states “no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, unless by or under the authority of an Act of Parliament which provides for payment of adequate compensation for the property or interest or right to be taken possession of or acquired.”
Land Act, 1995 and implementing regulations
Zambia’s Land Act, 1995 provides that all land in Zambia is vested in the President and “shall be held by him in perpetuity for and on behalf of the people of Zambia (Sec. 3, Land Act, 1995). The Land Act establishes two different types of tenure: customary tenure and leasehold titles. The Land Act also enables the President to alienate land to non-Zambians, including investors, companies, and other entities (Sec. 3(3)). If the President decides to transfer land held under customary tenure, then he must “taking into consideration” the local customary law on land tenure and consult the Chief or local authority of the area (Sec. 3(4)). The President can lease customary land for up to 99 years (Sec. 3(6)). However, the President must gain approval from the chief or local authorities in whose area the land to be converted is situated (Sec. 8(2)).
The Land Act protects customary tenure regardless of whether or not it is registered. Section 7 of the Land Act states “every 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.” According to Dr. Liz Alden Wily’s LandMark assessment of Zambia, customary land tenure is defined by law as a use and occupancy right, and there are no provisions in the Land Act enabling communities to acquire titles to customary land. The Traditional Authorities (i.e. Chiefs) are granted broad authority to govern customary land in Zambia. The Chief is not required to consult lower-level members of the community, and there are no elected land governance committees that can provide oversight and check the Chief’s power.
Under the 1995 Land act, almost all land transactions require the consent of the President of Zambia. The only exceptions are when customary landholders wish to transfer customary use and occupancy rights. The conversion of customary land to leasehold title requires approval from three authorities: the Chief, the district Council, and the Commissioner of Lands. A person using or occupying land under customary tenure may apply to the Chief for the conversion of such land into leashold tenure (The Lands (Customary Tenure) (Conversion) Regulations, 1996). Where the Chief consents to the application the Form shall be referred to the Council in whose area the land that is to be converted is situated (sec. 2(3), Regulations, 1996). The Council shall consider whether or not there is a conflict between customary law of that area and the Act (Sec. 3(1)). If the council is satisfied that there is no conflict between the customary law of that area and the Act, the council shall make a recommendation to the Commissioner of Lands in Form III as set out in the Schedule (Sec. 3(2)). The Commissioner of Lands shall accept or refuse to accept the recommendation, and shall inform the applicant accordingly (Sec. 3(3)). The council may also apply for in the interests of the community for the conversion of a particular parcel of land, held under customary tenure into a leasehold tenure. A person aggrieved by a decision of the Commissioner of Lands may appeal to the Lands Tribunal.
The 1995 Land Act does not explicitly establish whether converted land remains customary land under the authority of traditional leaders. In practice, however, converted land is often treated as state land governed by the Land Commissioner. Based on the provisions of the Act, it is also unclear whether the grant of a leasehold title to converted land necessarily extinguishes all customary rights previously attached to the land.
The Land Act’s vague wording may put customary rights holders at a disadvantage. When deciding whether to convert customary land, the President is required to “take into consideration” local customary law and consult with any person or body whose interest might be affected by a land conversion (sec. 3(4), Land act, 1995). The Act fails to provide guidance on what is meant by the phrase “take into consideration,” and only requires the President to consider customary laws which are not in conflict with the Act (sec. 3(4)(a), Land act, 1995). With respect to the provision requiring the President to consult with aggrieved persons, the act neither establishes how such a consultation should take place nor what remedies an aggrieved person should be afforded in the event of a conversion. Since any person who continues to occupy the converted tract of land is liable to be evicted (sec. 9(2), Land act, 1995) and the act does not require the President to grant compensation for converted land, the conversion process may have negative consequences for customary rights holders.
To address some of these issues, the African Wildlife Foundation (AWF) and other NGOs, has facilitated the establishment of Community Development Trusts (CDTs) in Zambia. CDTs are designed to secure customary land rights by mobilizing rural communities to acquire private leasehold titles to customary land, thus ensuring land held under customary tenure is protectd by law. Once customary land is converted into a leasehold title held in the form of CDT, the land continues to be administered following customary laws and practices. Under a CDT structure, the trust proposes land sites to be converted for the traditional ruler’s consideration (Metcalfe 2006). This way, traditional leaders can continue to regulate the allocation of customary land; however, under a CDT, the traditional leader’s authority is statutorily recognized. Traditional leaders are also responsible for mobilizing community members, overseeing and regulating Board of Trustees elections, ensuring the CDT bylaws and constitutions are upheld, and resolving land disputes (Metcalfe 2006).
Land Acquisition Act, 1970
According section 3 of the Land Acquisition Act, 1970, “the President may, whenever he is of the opinion that it is desirable or expedient in the interests of the Republic so to do, compulsorily acquire any property of any description.” Notice is required before the government can enter into any building or enclosed space or require occupants of land to give up possession (Sec. 6, Land Acquisition Act, 1970).
Section 12 of the Land Acquisition Act, 1970 states that “in assessing adequate compensation…the Minister and the Court shall act in accordance with the following principles…(b)the value of property….be the amount which the property might be expected to realize if solid in the open market by a willing seller at the time of [the notice] publication…”. Section 15(2) of the Land Acquisition Act, 1970 provides that “save where the land acquired is unutilized land to which an absentee owner is beneficially entitled, compensation shall be payable in respect of unexhausted improvements on unutilized land…provided that such compensation shall be limited to the value, for which the purpose the land is acquired, of such unexhausted improvements." According to section 15(6), “Unexhausted improvements” are defined as “any quality permanently attached to the land directly resulting from the expenditure of capital or labour and increasing the productive capacity, utility or amenity thereof, but does not include the results of ordinary cultivation other than standing crops and growing produce.” The Land Acquisition Act, 1970 do not provide compensation for economic activities (e.g. loss of business) intangible values (e.g. social, cultural, and spiritual values) associated with the land.
The law provides affected persons with a right to negotiate compensation levels. A consultation proceeding with affected persons, by which affected person and the Minister can agree on compensation levels, is implicitly established by Sec. 10 of the Land Acquisition Act, 1970. Section 10 states that “where any property is acquired by the President…shall on behalf of the Government pay in respect thereof…such compensation in money as may be agreed…provided that where the property acquired is land the President may, with the consent of the person entitled to compensation, make such person…a grant of other land…” (Land Acquisition Act, 1970, Sec. 10). Section 10 of the Land Acquisition Act, 1970 requires that “where any property is acquired by the President under this Act the Minister shall on behalf of the Government pay in respect thereof, out of moneys provided for the purpose by Parliament, such compensation in money as may be agreed or, in default of agreement, determined in accordance with the provisions of this Act: Provided that where the property acquired is land the President may, with the consent of the person entitled to compensation, make to such person, in lieu of or in addition to any compensation payable under this section, a grant of other land not exceeding in value the value of the land acquired, for an estate not exceeding the estate acquired and upon the same terms and conditions, as far as may be practicable, as those under which the land acquired was held.”
Section 17 of the Land Acquisition Act, 1970 provides that “where a notice to acquire any land under this Act has been published in terms of section seven, the persons entitled to transfer the land shall, notwithstanding anything to the contrary contained in any other law or in any order of any court otherwise than under this Act, within two months of the publication of such notice transfer the same to the President.” Section 11(1) provides that, if there is a dispute over compensation outstanding within six weeks of the acquisition notice, then any person claiming an interest can file a claim in the High Court; however, the law does not explicitly require compensation to be paid before possession is taken or within a fixed timeframe thereafter. "Where any dispute arises as to the amount of compensation, the Minister or any person claiming to be entitled to compensation may, and shall if such dispute is not settled within the aforementioned period of six weeks, refer such dispute to the Court which shall determine the amount of compensation to be paid."
Constitution of Zambia
Land Act, 1995
Land Acquisition Act, 1970
The Lands (Customary Tenure) (Conversion) Regulations, 1996
Other land laws