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«Security for Many or Surplus for the Few? Customary Tenure and Social Differentiation in Southern Malawi Eyolf Jul-Larsen Peter Mvula WP 2007: 9 ...»

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CMIWorkIngPAPEr

Security for Many or Surplus for the

Few? Customary Tenure and Social

Differentiation in Southern Malawi

Eyolf Jul-Larsen

Peter Mvula

WP 2007: 9

Security for Many or Surplus for the

Few? Customary Tenure and Social

Differentiation in Southern Malawi

Eyolf Jul-Larsen

Peter Mvula

WP 2007: 9

CMI Working Papers

This series can be ordered from:

Chr. Michelsen Institute

P.O. Box 6033 Postterminalen,

N-5892 Bergen, Norway

Tel: + 47 55 57 40 00 Fax: + 47 55 57 41 66 E-mail: cmi@cmi.no www.cmi.no Price: NOK 50 ISSN 0804-3639 ISBN 978-82-8062-218-1

This report is also available at:

www.cmi.no/publications

EYOLF JUL-LARSEN

The Chr. Michelsen Institute, P.O.Box 6033 Postterminalen, N-5892 Bergen, Norway. E-mail:

eyolf.jul-larsen@cmi.no

PETER MVULA

Centre for Social Research, Chancellor College, University of Malawi, P.O. Box 278, Zomba, Malawi. E-mail: petermvula58@yahoo.com Indexing terms Land tenure Customary land Social differentiation Malawi Poverty Project title The poor and the judiciary Project number 2492

CMI WORKING PAPER SECURITY FOR MANY OR SURPLUS FOR THE FEW? WP 2007: 9

Contents INTRODUCTION

SMALLHOLDERS IN SOUTHERN MALAWI, AND THE ROLE OF AGRICULTURE IN THE

FORMATION OF NATIONAL AND LOCAL ELITES

RECURRING DILEMMAS IN CUSTOMARY TENURE: INHERITANCE VS. WORK VS. ASSETS 7

SMALLHOLDERS’ TRESPASS ON ESTATE LAND; THE DYNAMICS OF THE MALAWIAN

LAND STRUCTURE

CONCLUSIONS

iii

CMI WORKING PAPER SECURITY FOR MANY OR SURPLUS FOR THE FEW? WP 2007: 9

Introduction1 In recent literature there exists general agreement that institutions regulating access to arable land in sub-Saharan Africa are characterised by ambiguous and open-ended rules and norms. Due to the importance of land as a resource and new (or sometimes recurring) policies for regulation of land, a discussion has emerged regarding the consequences of this open-endedness for the social transformation in African societies. The question asked is: which groups seem to profit the most from a contextualised and extremely negotiable manner of dealing with claims and disputes regarding access to land? Is it - like one may observe in many places in Latin America, Asia and Eastern Europe - the most powerful and most resourceful groups among the population that manage to impose their interests and appropriate land at the expense of the weaker and poorer groups in society, or – on the contrary - is it the poorest who manage to impede the accumulation of wealth by utilising the ambiguity and open-endedness in the access regulating institutions to their own favour?

This debate must be considered separate and different from a much older and more comprehensive debate about the adequacy and the efficiency of existing methods of land tenure (generally referred to as customary tenure) even though the former debate has emerged as a result of the latter. The question now is not whether customary tenure impedes or favours agricultural growth and economic development, but whether the ambiguity of these institutions are serving the richer and more powerful segments of society in their struggle for accumulation of wealth and power, or – on the contrary - whether it functions to protect poor farmers who still very much dominate in African agriculture. Crucial to this debate is the question of who is conceived to have developed ‘custom’ and who controls it. Important contributions by E. Colson2 and M. Chanock3 showed how close custom, as it emerged in Zambia and Malawi, were linked to the interests of the colonial administration in the two territories. Others, such as S. Berry4 and S.F. Moore5 also argue that the emergence of customary law to a large extent must be seen as the project of the colonial state.

However, ‘[u]nder indirect rule colonial regimes incorporated on-going struggles over power and social identity into the structure of colonial administration, and elicited conflicting testimonies from their African subjects concerning the meaning of ‘native law and custom’. As a result property rights and labour relations were neither transformed according to the English model nor frozen in anachronistic ‘communal’ forms, but instead became subjects to perpetual contest’.6 1 This article received funding through CMI’s project ‘The poor and the Judiciary’ funded by the Research Council of Norway. We wish in particular to thank magistrates in Thyolo and Mangochi districts for their open and kind collaboration as well as Siri Gloppen and Magnus Hatlebakk at CMI for valuable support and comments.

2 E. Coulson, ‘The Impact of the Colonial Period on the Definition of Land Rights’, in V. Turner (ed.), Colonialism in Africa (Cambridge, Cambridge University Press, 1971), pp.193-215.

3 M. Chanock, Law, custom and social order: the colonial experience in Malawi and Zambia, (Cambridge, Cambridge University Press, African studies series 45, 1985); M. Chanock, ‘Paradigms, policies and properties: a review of the customary law of land tenure’ in: K. Mann and R. Roberts (eds.), Law in colonial Africa, (Portsmouth : Heinemann Educational Books, Social history of Africa series, 1991), pp. 61-84.





4 S. Berry, ‘Hegemony on a shoestring, Indirect Rule and Access to Agricultural Land’ Africa, 62, 3 (1992), pp. 327-355;

Berry S. (2002), "Debating the land question in Africa", Comparative Studies in Society and History, 44, 4:638-68 (1992, 2002).

5 S. F. Moore, ‘Changing African Land Tenure: Reflections on the Incapacities of the State’, European Journal of Development Research, 10, 2 (1998), pp. 33-49.

6 Berry, Hegemony on a Shoestring, p. 345.

1

CMI WORKING PAPER SECURITY FOR MANY OR SURPLUS FOR THE FEW? WP 2007: 9

Pauline Peters is among those who most consistently have been arguing that parts of the research on African land tenure may have gone too far in emphasising the processual character and the openendedness attached to the land regulating institutions. According to Peters there are reasons to believe that the negotiability has its clear limits as what J.C. Scott7 called a ‘weapon of the weak’ and that ambiguity systematically are helping the more resourceful groups of society in a manner that contributes to increased inequality and to acceleration in the on-going process of class formation in Africa in general and in Malawi more specifically. She develops this argument in several articles where she sometimes draws upon a broad and general research material8 and sometimes more specifically upon her own empirical data from Malawi.9 In this paper we shall critically discuss Peters’ argument with reference to an analysis of available literature and our own empirical data from Malawi’s southern Region which is the same area as where Peters has been working. Although analyses on economic change between various socioeconomic groups are limited, we share her concern about increased socio economic inequality at the national as well as at the local levels. Classes in the sense of stable and distinct socio-economic groups with great variations in access to material assets are not easy to find at the local level, but nationally it probably makes sense to talk of an emerging formation of classes. However, increased social differentiation in a mainly agricultural society does of course not a priori mean that the land tenure system is accelerating such a process. We shall show how Peters’ analysis put too little emphasis on other and more important modes of appropriation of surplus in Malawi’s political economy such as international aid and labour migration in particular. It is mainly through surplus appropriation at this level that it is possible to understand how the national and local elites have emerged and are being reproduced. The wealthier segments of the population continue to invest in other sectors than agriculture since the latter is still considered risky with low profitability. A recent assessment of poverty and vulnerability in Malawi reveals extremely egalitarian patterns in customary land distribution as well as a surprisingly low level of commercialisation of agricultural products deriving from Malawian smallholders.

Our analysis of a number of court cases regarding land supports the views of the constructivist school10 in that the characteristics of customary tenure are important elements explaining this state of affairs. Various normative regulations embedded in customary tenure such as inheritance, investment of work and financial transactions continuously produce dilemmas that are utilised to keep foreigners at a distance and limit the land expansions of wealthy villagers. Furthermore, we show that Peters puts too little weight on the overall development in Malawi’s agricultural sector.

When people invest in agriculture it mainly takes place in the private sector, often called the estate sector, which is defined as external to customary tenure, and where land is privately owned or leased on long term contracts with government. If people prefer to invest in estate land it is precisely because of much better security on investments in the estate sector compared to the situation on customary land. But even estate land is challenged by the customary tenure. The demarcation of what is estate land and what belongs to customary land is subject to continuous negotiation and re-definition. Our study shows that local farmers and the traditional authority, over time, manage to re-appropriate estate land into customary land thereby safeguarding the interests of 7 J. C. Scott, Weapons of the Weak, Everyday Forms of Peasant Resistance, (New Haven and London, Yale University Press, 1985).

8 P. E. Peters, ‘The Limits of Negotiability: Security, Equity and Class Formation in Africa's Land System’, in K. Juul and C. Lund (eds.), Negotiating Property in Africa, (Portsmouth, NH: Heinemann, 2002), pp. 45-66; P. E. Peters, ‘Inequality and Social Conflict Over Land in Africa’, Journal of Agrarian Change, 4, 3 (July 2004), pp. 269-314.

9 P. E. Peters, ‘Bewitching Land: the Role of Land Disputes in Kin to Strangers and in Class Formation in Malawi’, Journal of Southern African Studies, 28, 1 (March 2002), pp. 155-178; Peters, P.E. and D.

Kambewa, ‘Whose Security? Deepening Social Conflict over ‘Customary’ Land in the Shadow of Land Tenure Reform in Malawi’, (Harvard University, CID Working Paper No. 142, March 2007).

10 One of the most influential representatives of this school is S. Berry. See references to her work elsewhere in the text.

2

CMI WORKING PAPER SECURITY FOR MANY OR SURPLUS FOR THE FEW? WP 2007: 9

the poor local farmers at the expense of the estate owners. It is therefore possible to say that the ambiguity and open-endedness of customary tenure to a large extent explains why the estate sector has not grown more than it has since it was created.

Most of our data derives from four shorter fieldworks in Thyolo and Mangochi districts in Malawi’s Southern Region in the period from June 2005 to March 2007. After initial investigations regarding levels and types of land conflicts we started to look at land conflicts which had reached the court system. After the identification of approximately 120 court cases in three Magistrates’ Courts, 45 cases were selected for further analysis.11 The main selection criteria were of a purely practical nature: the case should be closed, a verdict pronounced and the court files should be available. Less than ten cases were not included due to their content. They were all border conflicts between smallholders involving very small land areas. In addition to the court files which often proved to be more comprehensive than we initially had feared, we had the opportunity to discuss all cases with the magistrates who ruled the cases. Finally, approximately 20 cases were made subject to a more detailed investigation through interviews with representatives of the traditional authority who had been directly or indirectly involved in the case. In this type of research, based upon short visits to the sites, the danger of misunderstandings are considerable and one of our concerns was not to give concerned people a pretext for a re-play of the case. For ethical reasons we therefore avoided interviews with the individual plaintiffs and defendants. A different approach would have forced us to reduce the number of cases under detailed investigation further.

Smallholders in southern Malawi, and the role of agriculture in the formation of national and local elites 40 percent of Malawi’s 12 million inhabitants live in the rural areas of the Southern Region. The population density is among the highest in rural Africa and reaches 146 per km² (97 and 268 for Mangochi and Thyolo districts respectively).12 In most of the Shire Highlands (including Thyolo) virgin land is almost non-existent. In lower lying areas such as the in the Shire Valley (including Mangochi) virgin land of some quality is scarce but may still be found. Cultivated land is mainly rain fed and used for staple crops such as maize. A smaller part is wet land or dimba often used for horticulture. Some smallholders also cultivate cash crops such as burley tobacco, cotton, tea, paprika, groundnuts and chilli, but in limited amounts. Amongst smallholders, the distribution of landholdings is mostly concentrated between 0.2 and 2 hectares.13 The average size of the largest 20 percent of all holdings is 3 ha. Poverty is a common feature in the smallholder sector. With a poverty line at MK 16,16514 per year and an ultra-poverty line at MK10, 029, 64 percent of the rural population in the south was classified as poor and 32 percent as ultra poor in 2005. This is significantly higher than in the less populated regions in the centre and the north of the country. For the country as a whole the poverty and ultra-poverty rates are 52 and 22 percent respectively.

Poverty rates have been fairly stable in the period between 1998 and 2005.



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