Customary land tenure reform and development: a critique of customary land tenure reform under Malawi's National Land Policy.

• Author: Silungwe, Chikosa Mozesi

Contents Abstract 1. Introduction 1.1 Theoretical Framework 1.2 Structure of the Article 2. Development as Discourse 2.1 The Construction of 'Development' 2.2 The Nature of Neo-liberalism 2.3 A Critique of the Neo-liberal Approach to Development 2.4 Law and Development 2.5 The Nature of Customary Land Tenure 2.6 Land Reform and Development 3. Customary Land Tenure under Colonial and Post-Colonial Land Law and Policy in Malawi 3.1 Colonial Land Law and Policy 3.2 Post-Colonial Land Law and Policy 4. The National Land Policy: Customary Land Tenure Reform and Development 5 Conclusion Endnotes References 1. Introduction

Malawi adopted a National Land Policy in January, 2002. The policy, formulated under the aegis of the World Bank, is grounded in a neo-liberal approach to development. The thrust of the policy is that it 'reflect[s] the imperative of changing economic, political and social circumstances' in Malawi (Government of Malawi, 2002:8). The policy forms the basis for 'a comprehensive land law with immense economic and social significance' (Government of Malawi, 2002:8). It seeks to provide ' a sound institutional framework for democratizing the management of land and introduces [...] procedures for protecting land tenure rights, land based investments and management of development at all levels' (Government of Malawi, 2002:8).

The individualization, titling and registration of rights in land ('individual title') are a key tenet of the policy. This stems from the fact that neo-liberal discourse has influenced agrarian reform in the manner that individual title is lauded for its supposedly economic efficiency. In this neo-liberal framework, the predictability that is apparently characteristic of individual title is cherished as a basis for development. In this vein, customary land has been a site of ' conflict' in post-colonial States like Malawi where the competing interests of received law and customary law converge.

The broad aim of this article is to examine whether market-led agrarian reform enhances or undermines development in a predominantly agrarian political economy. Hence, I critique the neo-liberal approach to customary land tenure reform in Malawi under the policy by addressing the following issues: the goal of neo-liberalism in light of development especially in post-colonial States like Malawi; the goal of customary land tenure reform in Malawi; the link between neo-liberalism and customary land tenure reform in Malawi; and the alternative forms of land tenure that may be compatible with development in Malawi.

The issues are pertinent when one looks at Malawi's economic indicators. The population of Malawi at the time of the last census in 2008 is estimated at 13.1 million. The annual intercensal population growth rate is 2.8 per cent (Government of Malawi, 2008). On the basis of national estimates carried out in 2002, the country's population is estimated to double by 2020. The population is predominantly rural with approximately 85 per cent staying in the countryside. It is estimated that 65.3 per cent of the population is 'poor'; with 28.2 per cent of the population living in 'dire poverty'. Population density is estimated at 139 persons per square kilometre (Government of Malawi, 2008: 10) and is projected to rise to 220 persons per square kilometre by 2020 (Government of Malawi, 2002). The population pressure on cultivable land is critical and 40 per cent of the smallholder farming population has a landholding size of less than 0.5 hectare per household. In spite of massive inequality in land distribution, the smallholder farming population contribute 70 per cent of annual agricultural produce. The economy of Malawi is heavily dependent on agriculture which accounts for approximately 42 per cent of GDP and 90 per cent of the country's exports. Tobacco is the main foreign exchange earner. Maize is the main staple food and is the most common crop in subsistence agriculture (Government of Malawi, 2002: 15-17). The centrality of land to the political economy will remain in the foreseeable future following the negative impact of the structural adjustment programmes which has led to the continued shrinkage of the manufacturing sector's contribution to GDP, from 14 per cent in 2002 to 11 per cent in 2007 (Chinsinga, 2008:2).

1.1 Theoretical Framework

The critique of a neo-liberal approach to development examines arguments advanced by neo-liberals like Fukuyama (1992) and Hayek on the one hand; and the approach of Escobar (1995) and analyses such as Adelman and Paliwala (1993) and Purdy (2004) on the other. I look at the goal of customary land tenure reform in the context of a post-colonial society like Malawi using critical legal theory advanced by the critical legal studies movement and the theorization of legal pluralism advanced by Benda-B eckmann (1988, 2000), Griffiths (1986), Merry (1988) and Boaventura Santos (2002). The article also looks at the issue of the commoditization of customary land as a mechanism for integration into the global economy in light of globalization literature especially Fortin (2005). However, the nature of land reform means that the various theoretical approaches overlap in the discussion of the issues.

1.2 Structure of the Article

In section 2 of the article, I discuss the concept of 'development' as discourse. I proceed on the basis that 'development' is a post-World War II phenomenon which has been imposed on the global South through western hegemony. The imposition facilitates global capitalism (Escobar, 1995: 57, 98-9 9). Indeed if the imposition facilitates global capitalism in the broader scheme for the quest for 'modernity', the interests of the ' poor' are compromised.

In relation to land, there is a spurious link between individual title and economic growth. Notwithstanding various studies (Borras, 2005; Deininger and Binswanger, 2004; McAuslan, 2003; Platteau, 1996) that show that individual title does not automatically lead to economic growth, the persistence of market-led agrarian reform reflects the zeal of its proponents to integrate customary land into the global economy at the expense of the 'poor' (Benda-Beckmann, 2000; Fortin, 2005). This is the case because the 're-design of a property regime through individual title facilitates the flow of global capital' (Benda-Beckmann, 2000: 3).

In section 3, I trace customary land tenure reform under colonial and post-colonial land law and policy in Malawi. Colonial and post-colonial law and policy are similar as their aim has been the entrenchment of a 'capitalist' economy (Kanyongolo, 2004, 2005; Krishnamurthy, 1972). Customary land tenure was suppressed under the two periods as it had been adjudged anathema to development (Nankumba, 1986; Ng'ong'ola, 1986). While the colonial agenda benefited white settlers, post-colonial land law and policy benefits the 'non-poor' in the country (Kanyongolo, 2005:123).

For the discussion of Malawi's National Land Policy in section 4, I restrict myself to looking at the policy as it relates to customary land tenure reform and development. While acknowledging the underlying social and economic factors on land; inter alia, the effects of colonial and post-colonial land law and policy which led to landlessness of the 'poor', the policy has persisted with a neo-liberal conceptualization of land (Government of Malawi, 2002). Here I challenge the neo-liberal approach to customary land tenure reform and argue that a meaningful approach to security of customary land tenure entails the creation of a trust under statute that allows customary land law to govern that category of land. Any other mechanism commoditizes customary land and enhances its integration into the global economy. In this respect, the neo-liberal approach to customary land tenure reform under the policy, with its emphasis on the growth of a formal land market, will benefit the 'non-poor' at the expense of the 'poor' (Fortin, 2005; Moyo, 2004). In this vein, the neo-liberal approach to customary land tenure reform undermines development.

In the conclusion I propose that customary land tenure reform in Malawi must be examined in the context of a larger social, politico-economic enterprise. The history of agrarian reform in Malawi has been one of increasing landlessness. Under colonial rule, the 'poor' constituted a supply of labour for white estate (or large scale) agriculture. Post-c olonial land law and policy deprives the 'poor' of any meaningful proprietary rights in customary land and they have remained tenants at will at the mercy of the post-c olonial State. Malawi needs to develop legal mechanisms that truly entrench customary land tenure in favour of the 'poor'. The creation of a trust concept over customary land is one such mechanism. The challenge for Malawi is to develop ingenious macroeconomic strategies that complement security of customary land tenure.

2. Development as Discourse

   2.1 The Construction of 'Development'

   Foucault is the doyen on discourse (Escobar, 1995:5). According to Foucault, discourse entails 'the process through which social reality comes into being' through 'the articulation of knowledge and power' (in Escobar, 1995:39). Hence, development is a discourse because 'certain representations' have dominated its shape and reality while other 'representations' have been disqualified 'and even made impossible' (Escobar, 1995: 5). Development becomes a 'tale of domination' (Escobar, 1995: 5).

   Hence, development, as it has been imposed on the global South, is a post-Second World War phenomenon. Its genesis is the proposal by President Harry Truman of a 'fair deal' aimed at improving the lives of people inhabiting underdeveloped areas (Escobar, 1995:3). Gordon and Sylvester (2004:11) argue that '[i]f President Truman discovered global poverty, the World Bank quantified it [...] by defining countries with an annual per capita below $US100 as poor.' Hence, they contend that...