Highlighting Grey Issues In The Review Of the Land Act

Dr. Henry Kanyanta Sosala

PART 1

A Philosopher once said: ‘’Don’t ever dare to underestimate the power of stupid people.’’

The guideline on the role of chiefs in the land administration can only be drawn from the creation of Native Trust Lands, by Northern Rhodesia (Native Trust Lands) Orders-in-Council 1947, which was meant to benefit the indigenous people. This Act obliged the Governor (the representative of His Majesty’s the King of England) to consult the Native Authority before land in the Trust Lands was assessed for any purpose. And Barotse and Native Authority were being run by chiefs. And after attaining our independence “Native Trust Land” was substituted for ‘’Customary Land.’

customary land is protected by the Raoul Wallenberg Institute Compilation of Human Rights Instruments under the Convention Concerning Indigeneous and Tribal Peoples in Independent Countries as stated in article 7:1:’’The peoples concerned have the right to decide their own priorities for the process of development as it affects the lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.’’ And article 14:1 states: ‘’The rights of ownership and possession of the peoples concerned over their lands which they traditionally occupy shall be recognized.’’ Article 17:1 further states: ‘’Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.’’

In article 17:3 the Human Rights Instruments further protects tribal people from foreigners who might try to use unreasonable local stooges who think more of filling their stomachs than anything else to help alienate land: ‘’Persons not belonging to these peoples shall be prevented from taking advantage of their customs or lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.’’

Land issues are crucial, critical, sensitive and important in human life and that is why history has recorded so many wars on land. And the fundamental basis of the existence of the institution of chiefs is to diligently protect the interests of the vulnerable rural peasants against the manifestations of the powerful evil forces, especially those who entered into the corridors of power in 1991. And after putting all our national assets on grand sale and benefiting heavily from the proceeds, they have since been scheming ways to alienate customary land through various fake Land Acts and the document in fake review is no exception. For example whereas in section 3 (4), innocently seems to state: ‘’Notwithstanding subsection (3). The President shall not alienate any land situated in district or an area where land is held under customary tenure.’’ In actual fact a further scrutiny reveals a subtle scheme where more powers on land issues have been deliberately given to the Commissioner Lands. We have clearly seen it in the activists of the Speaker, the Registrar of Societies, the DPP or other sensitive areas..
And the bottom line is to consignee the poorest of the poor to slavery far worse than death itself. The late Mr. Simon Mwansa Kapwepwe, warned Zambians just when we got our independence: “you must love your land for which so much blood has been shed, because if you lose it you will have nowhere to go since God has stopped creating countries.”

It is therefore imperative for chiefs who form a vital element in the rural societies and who play an important role in the matters affecting the rural populations to come out of their shells and openly, courageously and strongly oppose the manifestations of these evil elements. There is absolutely nothing to fear about politicians because so long as the human heart is strong and human reason weak, tradition will be strong since it appeals to diffused feelings and politics weak because it only exists on false promises and misleading information.

Adolf Hitler in his book Mein Kampf (which is a must for every politician) wrote: ’’Popular support is the first element which is necessary for the creation of authority. But an authority resting on that foundation alone is still quite frail, uncertain and vacillating. Hence everyone who finds himself vested with an authority that is based only on popular support must take measures to improve and consolidate the foundations of that authority by the creation of force. Accordingly, we must look upon power, that is to say, the capacity to use force, as the second foundation on which all authority is based. This foundation is more stable and secure, but not always stronger, than the first. If popular support and power are united together and can endure for a certain time, then an authority may arise which is based on a still stronger foundation, namely, the authority of tradition. And, finally, if popular support, power and tradition are united together, then the authority based on them may be looked upon as invincible.’’

Owen Sichone wrote: ‘’In recent surveys of public opinion in rural South Africa, it came as a surprise to many to find that chiefs who were denounced as puppets of apartheid only a few years ago, are today more popular than the democratically elected party officials who rule the country. The reasons are simple and I am sure many Zambians will have no difficulty sympathizing with their South African counterparts. First of all, they say, ‘the nkosi is always here.’ Secondly, ‘He is suffering with us.’ In short, he does not zoom by in a BMW like the politicians who after being elected into office disappear into the world of business and credit card shopping. Those are the credentials of our chiefs, they are closer to the people than any other political institution.’’

Hezbollah’s success as an effective practitioner in the art of grass-root politics has a great bearing to traditional leadership in this country, because by using grass-root approach, Hezbollah has been able to convert the ignored Shi’ite underclass of southern Lebanon into a powerful lever in regional politics. The lesson is clear: chiefs being close to the underprivileged are more than able to work in the under-belly of local politics, as Hezbollah has done, since we are certainly very much aware of local pressure points and the knowledge of how to press the buttons and to get the desired results..
I believe from the outset it is of vital important to try and trace the backgrounds of those who came into power ir 1991.Dr Kamoyo Mwale was a career intelligence officer who had been trained by KGB. ‘’Zambia at the time, the drug dealers had over-run the economy. They were really controlling the economy……….. so most of the drug traffickers joined the opposition MMD.’’ So we can note the questionable backgrounds.

A few years later The Post observed in the editorial: ‘’We have lost a lot in terms of our sense of humanity over the last 15 years. The man-centred society that KK and his comrades tried to build in this country has been substituted by a society of wolves, hyenas and jackals which is centred in greed and vanity where those who are shrewd, who are daring, the most crooked can steal everything and become rich, leaving nothing for the poor and the disabled.’’ (ibid. 18th September 2006).

The South African Communistn Party, Secretary-General, Dr. Blade Nzimande visited this country at the invitation of The Post newspaper and here is what he observed: ‘’The one striking feature of the Zambian society is the extent to which the structural adjustment policies pursued by the Chiluba presidency have rolled back many of the gains made during the first two decades of Zambian independence after 1964. We found, amongst many of those we met a re-emerging nostalgia for the Kaunda presidency and the advances made then in the fields of education, health and provision of other basic services. The Chiluba presidency privatized virtually all the state-owned enterprises, leading to massive job losses and the rolling back in the provision of education and health services in particular.’’ (Sunday Post 9th April 2006)

It is stated in section 31 (2) (3) in the current draft: ‘’When the chief refuses consent, he shall communicate such refusal to the applicant and the Commissioner of Lands stating the reasons Form II as set out in the Schedule.’’ Remember what I earlier wrote about the powers of the Commissioner of Lands. And now note that this has just been twisted and reworded from the Mungomba draft Constitution which we rejected
(3) ‘’Customary land shall not be alienated or otherwise used until the approval of the chief and the local authority in whose area the land is situated has first been obtained and as may be provided by or under an Act of Parliament.’’
(4) ‘’An approval under clause (3) shall not be unreasonably withheld.’’
The first anomaly I had noticed was that this article (4) never appeared anywhere in Interim Report of the Constitution Review Commission and it was therefore smuggled into the NCC Draft Constitution by the technocrats as part of the foreign conspiracy to alienation customary land
And it is just too much of a coincidence that the same clause with the same wording has appeared the Minerals Regulation Commission Bill 2023. This therefore means that the cartel with their foreign -backers have taken advantage of the New Dawn Administration to carry out the alienation of the minerals without interference from traditional authorities. And in fact most of the license-holders are foreigners..
PART IV
MINING RIGHTS AND SURFACE RIGHTS
41. (1) A holder of a mining right or mineral processing licence shall not exercise any rights under this Act—
(a) without the written consent of the appropriate authority, upon any land—
(b) without the written consent of the owner or legal
occupier of the land or the duly authorised agent—
(c) upon land occupied as a village, or other land under customary tenure without the written consent of the chief and the local authority for the district in which the village is situated;
(3) Where any consent required under this subsection is unreasonably withheld, the Commission may arrange for arbitration of the matter in accordance with section 45.

My argument has first been that commissioners should not have in both instances resorted to apply the derogatory word ‘’unreasonable.’’ My dictionary defines the adjective ‘’stupid’’ as ‘’silly or unreasonable showing usually poor judgment or little intelligence.’’ It is heart-wrenching to use such derogatory language to describe the state of the minds of traditional leaders and their subjects in such important national government documents. In fact it is only an unreasonable or stupid chief who would withhold land unreasonably. And furthermore, the wording ‘’unreasonably’’ is not only very ambiguous but also relative. There are no reasonable parameters attached in both cases which clearly define what may constitute ‘’unreasonableness.’’ The said clauses do not specify the authority that shall declare the decisions of traditional authority or their subjects to be unreasonable or stupid. However, in the current draft, it is the Commissioner of Lands who would be declaring chiefs to be unreasonable.
The final authority in land allocations shall be the Commissioner of Lands as stated in 31 (3) 3: ‘’The Commissioner of Lands shall accept or refuse to accept the recommendationsand shall inform the applicant accordingly. Article 31 (6) states: ‘’A person aggrieved by a decision of the Commissioner of Lands may appeal to the Land Tribunal.’’ This means even the chiefs will have to appeal to the Lands Tribunal..
And what must be very clear is that now officially chiefs and their subjects are unreasonable because the document has been drafted and approved by Mulilo Kabesha, a State Counsel which means he is a top-notch government legal expert.

However, our leaders are flirting with disaster and these manifestations have all along been closely watched bu the international community. And here is what the United Nations special rapporteur, Hilal Elver cautioned that many Zambian peasants were at risk of becoming squatters on their own land as Zambia was being turned into Southern African’s food basket. ‘’The push to turn commercial large scale agricultural into a driving engine of the Zambian economy is a situation where the protection of access to land is weak, can risk pushing small-holder farmers and peasants off their land and out of production with severe impacts on the people’s right to food….. This situation is particularly worrying considering that small-holder farmers account for almost 60 percent of the population and are dependent on land for their subsistence and livelihood. In a country like Zambia that highly values its peace and social cohesion, the impacts of increasing land tensions could be detrimental.’’ (Daily Nation 13th May 2017) (emphasis mine)

And in this respect, note the words of Professor Vincent Harlow who referred to a widely held view that tribal power in Africa is on the way out and he asks whether the assumption is valid: “We may be misled, if we mistake revolutionary changes in tribal customs for decay. The potency of resurgent tribal power should not be underestimated, on the contrary is dynamic power should be harnessed to the task of national building.” (Tribalism in Africa: Journal of African Administration).