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Customary land tenure reform and development:
A critique of customary land tenure reform under Malawi's National land policy


Chikosa Mozesi Silungwe
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Dissertation submitted in partial fulfilment of the requirements of the Master of Laws degree in Law in Development

September 2005

SARPN acknowledges Chikosa Mozesi Silungwe as the source of this document.
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Abstract

Development is a post-Second World War phenomenon imposed on the global South through western hegemony. In relation to agrarian reform, neo-liberals laud individual title as a catalyst for economic growth. Customary land tenure has been adjudged anathema to development. Colonial and post-colonial land law and policy in Malawi favoured individual title in pursuit of a 'capitalist' economy. Customary land tenure was suppressed and was not allowed to flourish and evolve. In the process, the 'poor' in Malawi lost their rights in customary land. Malawi adopted a National Land Policy in 2002. The policy adopts a neo-liberal approach to customary land tenure reform, inter alia, to promote a formal land market. I contend that a neo-liberal approach to customary land tenure reform will benefit the 'non-poor'. This leads to the integration of customary land into the global economy. This might also lead to landlessness on the part of the 'poor' who might not withstand the vagaries of a formal land market. In this vein, the neo-liberal approach to customary land tenure reform under the policy will undermine development. An effective initiative to empower the 'poor' would be the creation of a trust over all land in a traditional land management area with a traditional authority as the public trustee of his or her community. The trust must be created under statute and must retain the elements of customary land law. Macroeconomic strategies may be developed that promote microfinance initiatives that would complement customary land tenure.



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