Accesssing Land
National Policy 2002
Facilitating Equitable Access for Citizen
Malawians regard access to land as a fundamental right. However, people’s demand for land is not for the land itself, but for farming, residential and investment purposes. As a result, demographic and economic pressures as well as the capacity to mobilize capital or access credit to develop land affect demand. Access to land is also, affected by the number of people wanting to hold land as an investment and the incentives to do so as a form of security.
This policy will ensure that security of tenure can be guaranteed on an equitable basis to all citizens in accordance with the following principles:
A. Any citizen or group of citizens of Malawi can have access to land in any part of Malawi provided that:
- Land is available for disposal in that part of the country where access is being sought.
- The person agrees with the landowner to adhere to the covenants, customs and practices legally enforceable under the laws governing the disposal of the land.
- The person undertakes to utilize the land in accordance with land use plans, environmental regulations and community land management duties and obligations applicable to all such lands in the area.
B.There can be no valid transaction in private lands between or among Private entities if:
- There is evidence of duress or conflict of interest within, between or among any category of private owners or stakeholders.
- The area has been declared protected, sensitive or found unsuitable for development.
To avoid the problems currently caused by the failure to recognize the market value of customary land, land values shall be determined by open market procedures for customary lands acquired through compulsory acquisition by the government.
Facilitating Access for Non-citizens
Under the present land law, any person, a citizen or foreigner, can apply and be allocated land for any permissible use ranging from residential, industrial, agricultural and ranching. Regulating non-citizen ownership of land in a small nation such as Malawi is a principle employed by a number of countries to prevent citizens from becoming landless in their own country.
To prevent any future problems of this nature, the following policy regulating land access for non-citizens and foreign companies will be affirmed by statute:
(a) In granting land to non-citizens, the rights and interests of the citizens of Malawi shall be safeguarded.
(b) To encourage access to land with transparent legal guarantees, non-citizens and foreign companies will be permitted to acquire land from the Government or directly from private landowners for residential and investment purposes in accordance with their investment objectives.
(c) With the coming into effect of this policy, only citizens will be permitted the privilege of owning freehold title in Malawi. Access to land for non-citizens will be construed as purely for residential and investment purposes and an appropriate renewable leasehold term determined.
(d) Non-citizens will no longer be allowed to acquire any new freehold rights or interest in Malawi after 17 January, 2002. Foreign investors interested in freehold land will be encouraged to form partnerships with Malawian fee owners.
(e) In accordance with current Malawi naturalization laws, non-citizens in possession of freehold estates in Malawi will be encouraged to attain Malawian citizenship in order to retain their freehold ownership. The right of citizenship for eligible non-citizens will be protected by law and will not be politicized or left to individual discretion.
(f) Failure to naturalize will not result in dispossession, but will automatically cause title to the land in question to be converted to a renewable leasehold contract with the reversion to the state.
(g) Subject to existing transfer laws, non-citizens already in possession of registered freehold assets of publicly traded corporations shall be permitted to hold and/or transfer such assets (through the normal trading of shares) to citizens and non-citizens.This policy is intended to limit the amount of freehold land held by non-citizens and foreign corporations.
Access to Land for Investment Purposes
With the exception of a few very special types of investments, such as mining, forestry and some perennial tree crops such as tea, most leasehold terms for industrial and commercial investment purposes throughout the world generally are for less than 50 years, with renewal clauses allowed. For that purpose, the standard leasehold term for land leased for investment purposes in Malawi will also be for 50 years or less.
(a) All citizens and local companies shall have equal access to land in Malawi.
(b) Non-citizens and foreign companies interested in acquiring land for investment purposes in accordance with the Investment Promotion Act, shall be eligible for renewable leasehold contracts and their investment assets protected by the laws of Malawi and the provisions of Malawi�s international trade and investment agreements.
(c) The standard leasehold term for land leased for investment purposes in Malawi will be determined on the basis of specific industry requirements, or for a renewable term not exceeding 50 years.
