Malawi: The Conflict Between Customary And Formal Land Laws

Despite passing the Deceased Estates Act of 2011 and Gender Equality Act of 2013, which protect spouses and children’s share in the deceased estates, issues of property grabbing are still rampant in Malawi, Deogracias Benjamin Kalima reports.

MALAWI – Margaret Chawanda, 66, sits on the veranda of her new two bedroom house by the hill of Chief Kapeni area, in the outskirts of Blantyre the commercial hub of Malawi. Two of her three grandchildren are with her while the other one is off to play with friends. She has only been living in the area for two years after she was forcibly evicted from her matrimonial home following the death of her husband of 33 years.

Margaret met and married Billy Dulao. Together, they settled and built their own house with Billy’s severance pay from his work in town as a cook to an expatriate doctor. They had three farms [3 acres in all] where they cultivated food crops like maize and groundnuts with their seven children. All seemed to be going well until 2014 when Billy passed on after a brief illness.

A day after Billy’s burial, Margaret was ordered by Billy’s relatives to leave her matrimonial home, calling her “an alien on their land”. She was asked to find another place to live, where the relations of her husband would build her a house within six months. When Chawanda reported the case to the village chief, he sided with Billy’s relatives on the ground that the eviction notification is in accordance with the customary law of the land.

“I was told since I was on the place all these years because of my husband, and now that my husband is dead, I should leave the house and place as it is clan land,” Margaret recalled. “They were verbally harassing me and my children almost daily and I got tired of their behavior. I had to leave for my own peace of mind.”

Billy’s relatives also took away her three gardens, leaving her with no land to grow food crops for her household consumption. After leaving her matrimonial home, Chawanda’s children mobilized some resources and they built her a house, about a kilometer from her matrimonial home. She moved there with her two youngest children and two grandchildren. She also rented a piece of land to grow her own food crops.

Chawanda’s is one of the many cases of land and property grabbing in Malawi, despite the country having laws that protect women and children against such abuse. Under Malawi’s formal law, women and men have the right to own land, individually or jointly with others. The constitution also prohibits gender discrimination.

Malawi has also in recent years passed and enacted important laws in favor of women. The recent being the Gender Equality Act of 2013, which was passed after the Deceased Estates Act of 2011 to protect spouses and children’s share in the estate, making property grabbing a criminal offense, liable for a fine of MK1,000,000 (US$1500) or imprisonment of up to three years.

Legal vs Customary Law
Despite passing and enacting progressive legal instruments, little if any, has changed especially in rural areas where most women are either illiterate or semi-illiterate.

According to recent estimates by the National Statistical Office, women constitute about 56 percent of Malawi’s population. Although women are in majority, they are the ones who suffer most from social injustice such as access to adequate maternal and reproductive healthcare and land ownership and succession as seen in the case of Chawanda. The law and the society have largely failed to protect the rights of women.

In the case of Chawanda, when she sought assistance at a nearby Victim Support Unit of the Malawi Police Service to avoid eviction from her matrimonial home, the police officers told her that her issue was a customary case so as the police cannot do anything.

“I was disappointed to be told by the law enforcers that they could not do anything on my complaint yet it was against the country’s laws,” Chawanda said.

Since that day, Chawanda said no longer trusts the police or the traditional chiefs to uphold rule of law as dictated by the country’s constitution.

“Instead of protecting the vulnerable, the traditional leaders and the police have chosen to look away from the suffering of many widows who are suffering because they have everything taken away from them,” she added.

Human rights lawyer and activist in Malawi, Mandala Mambulasa acknowledges there are problems with law enforcement on the recently enacted laws that protect women and children.
According to Mambulasa, the problem lies in the fact that there is a large disjuncture between women’s constitutional rights and statutory and customary laws, which causes serious barriers for women empowerment and protection.

“There is a need to make sure there is coherence between statutory and customary laws so as not to leave any section of the society out,” he said, adding that there is an immediate need to address this by making sure all stakeholders like the police are working as expected of them.

When pressed for his comment on the accusations of negligence by some affected women, National Spokesperson for Malawi Police Service, James Kadadzera said the Police is doing all it can to enforce laws but sometimes some officers, especially in rural areas, choose to ignore their work ethics and neglect complaints, which has negatively affected public’s perception on the police service.
“I would like to urge the public to lodge their complaints to senior police officers whenever they feel they have not been assisted on their complaints. They can also lodge a complaint with human rights organizations who we are working with to end this problem,” he advised.