Zambia: Challenging the displacement of communities from customary land in the Serenje District

The Southern Africa Litigation Centre, in collaboration with the Muchinda Royal Establishment together with the Zambia Land Alliance, is assisting 13 community members, each representing their family in bringing forth a case where they seek to challenge their forced eviction, destruction of their properties and assets, and the seizure of their customary land without any consultation and compensation. Background Before their eviction, Molosoni Chipabwamba and 12 Other displaced villagers lived in a village called Milumbe along the Mulembo River in Chief Muchinda’s Chiefdom in the Serenje District. Evidence shows that some of the said villagers had lived in the area as far back as 1969, long before their land was designated as a Farm Block in 1997.  In January 1996, Yssel Enterprises Limited applied for the land in dispute, and the application was approved by the Works, Development and Social Services Committee together with the entire Council of Serenje District without prior authorisation from Senior Chief Muchinda. In December 1997, Senior Chief Muchinda eventually authorised Yssel Enterprises Limited to settle as a commercial farmer in his Chiefdom more than a year after the Serenje District Council unlawfully approved its application. Senior Chief Muchinda, however, carefully demarcated the land he authorised Yssel Enterprises Limited to settle on as a commercial farmer as the land along the Luombwa River, an area of 360 hectares. The Chief clarified that he did not authorise the 1st Interested Party to reach the Mulembo River, where the Respondents had lived for generations. Bizarrely, the eventual Certificate of Title issued to Yssel Enterprises Limited in 1998 was 2040 hectares in extent and included the 13 villager’s customary land. The property passed through several commercial owners since then. In 2013, new owners, Bills Farm Limited and Abraham Lodewikus Vilgeoen, forcefully evicted the 13 villagers and destroyed their homes, crops, and fruit trees. Bills Farm Limited and Abraham Lodewikus Vilgeoen’s decision to expel the 13 villagers and their families followed after the Serenje District magistrate found it its decision that land occupied by 13 villagers belonged to a commercial farmer and that they were all together with their dependents to vacate the land. The community members were forced to vacate the area without packing their belongings. After their illegal eviction, the community found refuge in Musangashi Forest Reserve. When they sought help from the Serenje District Commissioner’s Office and the Permanent Secretary for Central Province, they only received 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. In the High Court On 15 December 2017, the community filed a case in the Lusaka High Court where they challenged their forced eviction, the destruction of their properties, and the taking of their customary land without compensation and consultation. In the High Court, the community among others, sought the following relief:

• An order and a declaration that the taking over of their customary land without following the required procedure is unconstitutional and is therefore null and void;
• An order and declaration that they be allowed to enjoy their land in accordance with the customary law of the area and its attendant rights; and
• An order cancelling any allocation, assignment or Certificate of Title that was issued to Yssel Enterprises Limited.

On 30 April 2020, the High Court found that the conversion of land in dispute was null and void and that issuing the Certificate of Title to Yssel Enterprises Limited rendered the 13 community members squatters and violated their Constitutional rights. The High Court, however, held that it would not be in the public interest to cancel the Certificate of Title issued to the new owners because they had settled on the disputed land as commercial farmers, most likely in furtherance of the government’s policy to create farm blocks which are beneficial for national development. In the Court of Appeal Partially dissatisfied with the High Court’s judgment, particularly the refusal to cancel the Certificate of Title issued, the community filed an appeal to the Court of Appeal of Zambia, where they asked the Court to cancel the Certificate of Title and that they be allowed to return to their land.The Court of Appeal delivered a judgment in favour of the Appellants. Agreeing with the High Court’s decision that the conversion of the land was contrary to the law and accordingly null and void, the Court of Appeal ordered that the Certificate of Title be cancelled. in the Supreme Court of Appeal Bills Farm Limited and Abraham Lodewikus Vilgeoen have filed an appeal against the judgment of the Court of Appeal, which cancelled the Certificate of Title issued to Billis Farm Limited following an unlawful conversion of customary land to State land. In their appeal, the Bills Farm Limited and Abraham Lodewikus Vilgeoen argue, among other things, that despite the procedural irregularities in converting the customary land to state land and the lack of consent from the rural community, the Court of Appeal should not have cancelled the Certificate of Title because it was issued in the name of an investor who had invested a tremendous amount of money into a farm block following the introduction of the Farm Block Development Programme by the Zambian Government. The community members oppose the Appeal application brought forth by Billis Farm Limited and Abraham Lodewikus Vileone and argue, among other things, that the acquisition of their land without following the required procedure is unconstitutional and that the prescribed law for converting customary land to state land should apply equally to all persons in Zambia regardless of whether they are natural, legal, local, or foreign investors. The case was argued in the Supreme Court of Zambia on 7 March 2023, and we are currently awaiting the judgment. Factsheet Articles  26 June 2020-A new dawn for the protection of the rights of vulnerable communities with unregistered land in Zambia News Release 06 March 2023-Supreme Court of Zambia to hear a case on whether to cancel the Certificate of Title issued after an illegal conversion of customary land to state land 22 April 2022-  Zambia Court of Appeal affirms displaced community’s customary land rights 04 May 2020-Zambia High Court upholds displaced communities’ land rights Court Judgments Court of Appeal judgment High Court judgment Case in the news 26 June 2020 – A new dawn for the protection of the rights of vulnerable communities with unregistered land in Zambia.