Limitation of Landownership in Zambia

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ISSUE:

A) Common and statutory law limitations of landownership in Zambia; and (B)the legality of Compulsory Acquisition.

AUTHOR:KATALILO JOY

(A)
INTRODUCTION

This is a paper discussing the limitations imposed by law (common and statutory) on land in Zambia.

Land in Zambia is governed using the Land Act Chapter 184. According to section 3(1) of the Land Act, all land in Zambia is vested in the President who is to hold it forever on behalf of the people of Zambia[1].

The President is empowered by the Land Act to alienate land to any Zambian or non-Zambian. The conditions under which the President can alienate land to a non-Zambian are set out under Section 3(3) of the Land Act. In particular, the President can alienate land to a non-Zambian, inter alia, when the non-Zambian is a permanent resident in Zambia or is an investor as defined by the Investment Act or any other law relating to the promotion of investment in Zambia.

Taking note of the fact presented by section 3(1) of Chapter 184, land ownership in Zambia is thus not absolute. Land is given to a person (corporate or individual) on rental basis. This makes those having “ownership” of land in Zambia have an interest in the land in that they will possess that interest but will not own the land. In this regard, land in Zambia is alienated on tenure basis as leasehold or customary.

A leasehold is defined as a right to hold or use property for a fixed period of time at a given price, without transfer of ownership on a basis of a lease contract. This definition is in line with the sense contained in section 3(1) of the Land Act in that land given under this method is rented out to one for a period of 99 years and the recipient is expected to pay a price in form of, among others, ground rates to the Government of the Republic of Zambia. This aspect is confirmed in section 4(1) of the Land Act which forbids the President from alienating land when no consideration is given in money form for the alienation and ground rent for the land, respectively[2]. The President can only give Land under leasehold method for free if the land is to be applied for public purposes only.

Customary tenure is recognized in Zambia as the other form of landholding by the Lands Act of 1995. Customary tenure comes about when one holds land that was referred to as Reserve land and Trust land before the commencement of the Land Act.[3] One acquires rights to customary land by clearing up the land that has no other person claiming it. This is usually done by persons indigenous to the area where the free land is situated and the rights once established become permanent unless they are extinguished by abandonment or by death. The permanence of rights does assure security of tenure.

The Land Act of 1995 under section 8(1) does give room for the conversion of customary landholding to leasehold. However, section 8(2) of the Land Act of 1995 does state that there can be no conversion of customary land to leasehold without the express consent of the traditional rulers ( Chief) of the area where the land is situated[4]. The forgoing is but one of the limitations regarding land ownership in Zambia. The other limitations emanate from the latin maxim “cuius est solum eius usque ad caelum ad inferos[5]” which literally means that once one own land, he owns what is in its depth and what is above it to the heavens. This is a general expectation to whoever is getting land. However, limitations to this expectation are presented by laws governing natural resources found on/in the land in Zambia.

a) Water: This resource if found on your land is governed by the Water Act, Chapter 198 of the Laws of Zambia. Section 5 of the Act reserves ownership of all water in Zambia for the President. This means that one does not own water by virtual of one acquiring land that has such water on it. The Act provides for the classification of water into two categories...
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