Is the Social Tenure Domain Model a Suitable Land Reform Tool for Zambia's Customary Land: A Case Study Approach

Introduction

Security of tenure and access to land for all, including minority groups such as persons with disabilities, the youth, the aged, and women, are strategic prerequisites for the responsible development of agriculture. It is the role of every government to promote the provision of an adequate supply of land in the context of responsible land use policies. Land reform in Africa is based on two fundamental principles: enhancing the social capital where customary tenure exists, and enhancing individual responsibility in individual tenurial systems. Zambia operates a dual land tenure system based on the two principles where statutory land is under the administration of the government and customary land under more than 270 traditional leaders called chiefs. The government in Zambia is promoting land reforms aimed at enhancing both types of land tenure systems alongside each other, in a social context applying the Social Tenure Domain Model (STDM).

Through a case study approach, this chapter evaluates whether or not STDM will provide a solution to the problem of tenure insecurity and promote responsible land management in Zambia. The case study will analyze the decisions in the two cases on the conflict between statutory land rights held under a certificate of title against land rights of the community held under customary tenure (Mpongwe Development Corporation Ltd v Kamanda, 2007; Mpongwe Development Company Ltd v Kamanda, 2010). It is acknowledged that the Supreme Court is the final court of appeal, and its decisions are binding on the parties to the matter. This chapter will not question the judgment of the Supreme Court, but will analyze how STDM as a land reform tool can be used to assist the subsistence farmers holding land under customary tenure to enforce their rights to land in cases of conflicts like the one under the Mpongwe cases.

The objectives of this chapter are, firstly, to discuss the dual land tenure system currently being applied in Zambia and the gap created as a result of non-registration of customary land tenure. Secondly, to consider the position of STDM as a flexible tenure approach, by discussing the five pilot projects in Zambia. Finally, the chapter will consider the application of the STDM in resolving land tenure disputes between large-scale land investment and customary land use using the decisions from the Mpongwe cases. In addition, the chapter will, to a limited extent, evaluate the STDM approach in terms of the responsible development of agricultural land. Thereafter a conclusion will be drawn and recommendations given.

Use of STDM in Land Administration and Management

This chapter will adopt the understanding of the STDM approach on three levels as presented by Lemmen; STDM as a concept, STDM as a model, and STDM as an information tool (Lemmen, 2010, 2012). The first two levels are discussed below, while level three will be explained under the discussion of the five pilot projects under Section 18.5.

There is a gap in the conventional land administration systems in Zambia such that customary tenure cannot be easily identified and conceptualized. The need for an alternative approach in land administration has been discussed over a period of time. The concept of STDM is being applied to bridge this gap by providing a standard for representing “people-land” relationships independent of the level of formality, legality, and technical accuracy. STDM can represent all types of “people” and all types of “people-land” relationships, and can represent such linkages or relationships by various types and/or combination of location-based elements or “spatial units.”

Du Plessis in his writings further argues that:

the main value added by the continuum concept is that it offers a shift away from a preoccupation with titling and individually held private property, is a simple call for change in complex contexts, a way of describing and representing new forms of practice, and a foundation for inclusion and building on existing practice. In addition, and perhaps most important of all, the continuum is an aid to both identifying and advocating for where more fundamental reforms are needed to the land policy, law and administration systems (Du Plessis et al., 2016, pp.33-34).

STDM is an initiative of GLTN, as facilitated by UN-Habitat, to support pro-poor land administration, and to offer an alternative against the conventional tenure approach which does not cater for customary tenure.

Understanding STDM as a Concept

In order to conceptualize STDM, it is important to understand what the continuum of land rights is and the process it provides for the gradual shift from informal land rights to formal land rights. It has been argued that STDM in its current development can be used generally in all contexts and situations covering both tenures. It can also serve as an alternative to the current conventional Land Administration System (LAS). However, STDM’s development for now is meant specifically for developing countries where there is very little cadastral coverage in urban areas with slums, or in rural customary areas which are not surveyed. The focus of STDM is on all relationships between people and land, independent from the level of formalization, technical accuracy, or legality.

“People-land” relationships can be expressed in terms of persons (or parties) having social tenure relationships to spatial units. The relationships can be expressed in different ways; for example, in the pilot project in Uganda, the main spatial unit used is the house or structure occupied or owned by slum-dwellers. In the pilot implementation of STDM in Uganda, when undertaking participatory enumeration in informal settlement, a household is taken to represent a single party. The flexibility of STDM as a concept allows for its adaptation to a particular situation.

STDM as a Model for the Pilot Projects in Zambia

The STDM being piloted in Zambia is viewed by NGOs implementing the pilot projects as a more flexible, fit-for-purpose, and inclusive approach based on recognition of a diversity of rights, within a context of pro-poor and gender responsive land management and administration. The project on land reform initiatives in Zambia, Phase 1, supported by UN-Habitat (United Nations Human Settlements Programme (UN-Habitat), 2017), was implemented from January 2018 to December 2018. Phase 2 will commence soon as a build-up of the achievements recorded in the first phase is implemented.

There were four interrelated components that had been identified as areas of concentration under Phase 1. Firstly, awareness building and partnership strengthening, which under Phase 1 focused on introducing and supporting the use of fit-for-purpose land tools and approaches in land administration and management. The second phase will build up on the gains achieved under the first area of concentration and focus on advocating for and strengthening the implementation of the fit-for-purpose land tools and approaches among key stakeholders, and the establishment of a multistakeholder platform on land. The second component of Phase 1 concentrated on the need to finalize the draft land policy in Zambia so that it can provide comprehensive guidance on land management and administration issues. The second phase will provide the technical support to the Ministry of Lands, Natural Resources and Environmental Protection (MLNREP) to finalize and launch the National Land Policy. The third component during Phase 1 supported scaling-up customary land certification interventions. Eleven villages in the chiefdom of His Royal Highness, Senior Chief Chamuka IV of Central Zambia were supported with the issuance of customary land certification. Further, 70 local women, men, and youths were trained to carry out the participatory enumeration process and mapping using the STDM. In total, 530 customary land certificates covering 5% of the Chief’s land were issued. The second phase will focus on strengthening scale-up efforts by training more people, establishing and equipping local offices in the Chiefdoms, and building the capacity of the local people to manage and share relevant data with key stakeholders.

The final part of Phase 1 was to provide support to issue occupancy licenses in selected informal settlements involving Ward 10 of Kanyama informal settlement in Lusaka (UN-Habitat, 2017). Technical and financial support was given to the Lusaka City Council (LCC) to improve the process of issuing the Occupancy Licenses under the new and more progressive legislative framework provided under the Urban and Regional Planning Act (Urban and Regional Planning Act, 2015). In total 18,400 households were mapped and enumerated and a database was established that could be accessed by Lusaka City Council (UN-Habitat, 2017).

This chapter will concentrate only on customary land certification and the conflicts that STDM will resolve between statutory land rights and customary land rights holders. Five main pilot projects in Zambia will be considered, on the implementation of the STDM. The emphasis will be on evaluating whether STDM is a suitable land reform tool for Zambia’s agricultural land using a case study approach. The main question is whether STDM will provide a solution to the problem of tenure insecurity caused by conflicts between customary and statutory rights to promote responsible development of agricultural land in the rural areas.

 
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