Lusaka, 4 May 2020 – On 30 April 2020, the High Court of Zambia handed down a significant judgment on the land and property rights of rural communities. The case was brought by 13 community members, each representing her or his family (the Petitioners). For the past seven years, the community lived in makeshift tents in a forest reserve following their forced displacement from their ancestral land and villages (the Disputed Land). The Petitioners challenged their eviction, destruction of their properties and assets, and the seizure of their customary land without consultation or compensation.
Hon Mrs Justice S. Kaunda Newa in the case of Molosoni Chipabwamba and 12 Others v Yssel Enterprises Limited and 7 Others, held that the Disputed Land was illegally converted from customary land to State land, that the community was not consulted, and that the Chief’s consent was not obtained. The Court held the Commissioner of Land in dereliction of duty for unlawfully approving the conversion of the land. The Court found that the Petitioners’ forced displacement violated their constitutional rights to life, freedom of movement and association, dignity, and equal protection of the law.
The High Court ordered the Attorney General to provide alternative land to the Petitioners and to compensate them for the violation of their rights. The alternative land must enable the Petitioners to enjoy their cultural and traditional rights; carry out farming activities; and access water, health services, schools and other social amenities. The Court ordered that Serenje District Council meets the costs of relocating the Petitioners to alternative land. The Court further ordered Billis Farm Limited to compensate the Petitioners for the value of their destroyed properties, including the value of their ancestral graves.
“I am so happy that the court ruled in our favour,” said Mrs Febby Kalunga, who is one of the Petitioners currently living in the forest reserve. “However, I would prefer to return to my ancestral land, as there isn’t much land left in Senior Chief Muchinda that we can relocate to.”
“Accessing justice in rural areas, especially for poor rural communities, is a nightmare,” said Molosoni Chipabwamba, who is the 1st Petitioner. “I am delighted that the Court heard our cry, and that it stressed that we must be consulted in the decisions around alternative land.”
“The Katumba Royal Establishment of Senior Chief Muchinda is thrilled by this judgment,” said Kharika Phiri who was the Secretary to the late Senior Chief Muchinda. “The judgment gives hope to other affected villages, just as the late Senior Chief Muchinda, His Royal Highness, Evans Mukosha, had hoped for when he initiated the case.”
“We are happy that the community has finally received justice,” said Mr Patrick Musole, Executive Director for the Zambia Land Alliance. “The traumatic events these families experienced could have been avoided had the government protected the rights of its citizens. We appreciate that the government prioritised diversification of the economy through commercial agricultural investments, but this should never be at the expense of the rights of its citizens.”
“Gradually farm-blocks have taken over large areas of customary land in the Serenje District, with displaced communities having nowhere left to go,” said Anneke Meerkotter, from the Southern Africa Litigation Centre. “The farm-block model aims to encourage large-scale agricultural investment by local and international investors throughout Zambia. However, the implementation of the model benefits foreign commercial farmers with scant regard for communities’ customary land rights.”
FACTUAL BACKGROUND TO THE CASE
The Petitioners have lived in Milumbe, along the Mulembo River, for generations. In January 1996, the 1st Respondent applied for Farm No. 26 in Luombwa Farm Block. The Works, Development and Social Services Committee and the Full Council for Serenje District both approved the application without obtaining authorisation from Senior Chief Muchinda. Senior Chief Muchinda eventually authorised the 1st Respondent to settle as a commercial farmer in his Chiefdom in December 1997, more than a year after the Serenje District Council (6th Respondent) unlawfully approved the 1st Respondent’s application. However, Senior Chief Muchinda carefully described the land he authorised the 1st Respondent to settle on as a commercial farmer as the land along the Luombwa River, an area of 360 hectares. The Chief did not authorise the 1st Respondent to reach the Mulembo River, where the Petitioners had lived for generations. Strangely, the eventual certificate of title issued to the 1st Respondent in 1998, was 2040 hectares in extent and included the Petitioners’ customary land.
The property passed through several commercial owners since then. In 2012, new owners, the 4th and 5th Respondents, forcefully evicted the Petitioners and destroyed their homes, crops and fruit trees. The community members fled without packing and found refuge in Musangashi Forest Reserve. They sought help from the Serenje District Commissioner’s Office and the Permanent Secretary for Central Province. All they received was a month’s supply of food and tents. Since 2013, the community has had no access to clean water or a sustainable means of sustenance. Their children have not received proper schooling and health care and the community’s overall quality of life has deteriorated dramatically.
In December 2017, the community filed a case in the Lusaka High Court to challenge their forced eviction, the destruction of their properties, and the taking of their customary land without compensation and consultation.
Mr Clavel Sianondo and Ms Modrine Siansumo from Malambo and Company and Mr B. Siachitema from Lusitu Chambers represented the Petitioners. The Zambia Land Alliance and Southern Africa Litigation Centre supported the case.
Additional information on the case is available at: https://bit.ly/2yoYEKs
Issued by the Zambia Land Alliance and Southern Africa Litigation Centre