06March 2023, Lusaka – On 7 March 2023, the Supreme Court of Zambia will hear an appeal brought by Billis Farm Limited and Abraham Lodewikus Vileone (Appellants) against the judgment of the Court of Appeal in the case of Molosoni Chipabwamba and 12 Other displaced village owners v Yssel Enterprises Limited and 7 Others. The Court of Appeal cancelled the Certificate of Title issued to Billis Farm Limited (1st Appellant) following an unlawful conversion of customary land to State land. In addition, the Court ordered that the land already converted to State land revert to customary tenure. In a unanimous decision, Judges C.K Makungu, D.L.Y Sichinga SC, and M. J Siavwapa agreed with the High Court’s findings that the prescribed procedure in the conversion of customary land to State land was not followed as the interests of the community that occupied, used, and enjoyed the land was never considered.
In their appeal, the Appellants 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 Respondents, who are representing a community of over 200 people who have been squatting in Musangashi Forest Reserve under challenging living conditions since June 2013 following their violent and forceful eviction from their customary land, oppose the Appeal application brought forth by the Appellants 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.
This case is essential because it highlights how often the interest and demands of the most potent groups, such as investors, tend to overshadow the needs of the marginalised rural communities in Zambia. It draws attention to the disparities in access to land affecting villagers and peasant farmers in rural areas and demonstrates the persistent legacies of land dispossession in Africa. On 23 February 2023, Diamond TV Zambia released a video of the President of Zambia informing the traditional leaders that land such as massive 55,000 hectares was converted from customary to state land without consulting the rural communities occupying it and that people were not happy with such conversion. Like colonial powers, post-colonial States continued to use various schemes, including policies such as the poorly implemented Farm Block Development Programme in Zambia, to remove land from marginalised rural communities.
Background
The Respondents have lived in Milumbe, along the Mulembo River, in Chief Muchinda’s Chiefdom, Serenje District, for generations. Evidence before the Court showed that the Respondents had occupied the land as far back as 1969, long before the land was designated as a Farm Block. In January 1996, Yssel Enterprises Limited (1st Interested Party) applied for Farm No. 26 in Luombwa Farm Block. The Works, Development and Social Services Committee and the Full Council for Serenje District approved the application without authorisation from Senior Chief Muchinda.
Senior Chief Muchinda eventually authorised the 1st Respondent to settle as a commercial farmer in his Chiefdom in February 1997, more than a year after the Serenje District Council (4th Interested) unlawfully approved the 1st Interested Party application. Senior Chief Muchinda, however, carefully demarcated the land he authorised the 1st Interested Party 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 the 1st Interested Party in 1998 was 2040 hectares in extent and included the Respondent’s customary land. The property has passed through several commercial owners since then. In 2013, new owners, the Appellants, forcefully evicted the Respondents and destroyed their homes, crops and fruit trees using a giant chain pulled by two bulldozers. The community members fled without packing their belongings and found refuge in Musangashi Forest Reserve. They sought help from the Serenje District Commissioner’s Office and the Permanent Secretary for Central Province but 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.
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. 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 the 1stRespondent rendered the Petitioners squatters and violated their 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.
Mr C. Sianondo and Mrs M. Siansumo -Tembo from Malambo and Company and Mr B. Siachitema from Lusitu Chambers represented the Appellants in the case.
Issued by the Southern Africa Litigation Centre.
