Certificates of Claim
Certificates of Claim were a form of
Background to the land issue
In pre-colonial times, the right of land ownership in much of Malawi belonged under the rules of customary law to the African communities that occupied it.
In the period after 1860, southern Malawi suffered insecurity through warfare and slave raiding: this led to the widespread abandonment fertile land. Local
Johnston's review of land claims
The British government appointed Harry Johnston, later Sir Harry, as Commissioner and Consul-General of the protectorate from 1891. Johnston rejected the suggestion that it could have any treatsἑ made before the protectorate was established could transfer sovereignty to individuals or companies. However, he did accept that these treaties and other agreements might be evidence of sales of land. Before the British Central Africa Protectorate was proclaimed in June 1891, Johnston had only made treaties of friendship with local chiefs, which did not surrender sovereignty to the Crown, and he did not consider that the Crown had a general claim to sovereign ownership of any land unless this had been expressly transferred by cession. Without sovereignty, the Crown had no right to alienate that land. The treaties that he made from July 1891 did cede sovereignty over land, but granted the chiefs and people involved the right to retain the land that they actually occupied, leaving all the unoccupied land free for the Crown to dispose of. Although the protectorate had been proclaimed on the understanding that British South Africa Company would contribute to the costs of its administration, Johnson, refused to act as the company's agent and resisted its demand that the Crown lands forming about 20% of the protectorate should be transferred to company control and that Johnson should also facilitate the transfer of African lands, about 40% of total land, to it[5]
Although Johnston accepted that the land belonged to its African communities, so their chiefs had no right to alienate it to anyone, he put forward the legal fiction that each chief's people had tacitly accepted he could assume such a right. Although under this interpretation chiefs could cede land to the Crown or sell or grant land not currently being used by the community to Europeans, Johnston claimed that, as Commissioner, he was entitled to investigate whether these sales were valid and, if they were, to issue a Certificate of Claim (in effect a registration of freehold title) in the land to the new owners.[6][7] Johnston had no legal training and the protectorate has no law officers until 1896. However, when the legality of the Certificates of Claim system was challenged in 1903 on the basis that the agreements made by the chiefs breached the rights of their community members, the Appeals Court upheld the validity of the certificates, ruling that that title arose from a grant by the Crown's representative, not from any agreements made by the chiefs. The court did however judge that many aspects of the agreements were unfair and one-sided.[8]
Johnston recorded that his review of land claims begun in late 1892 was necessary because the proclamation of the protectorate had been followed by a wholesale land grab, with huge areas of land being bought for trivial sums and many claims overlapping or requiring adjustment. He regarded long occupation and improvement of the land as the best way to justify a claim, but it was rare. Failing this, he or an assistant sought confirmation that the chiefs named in agreements had agreed to sell the land and had received a fair return for the sale. However, his estimates of land value were very low, from a halfpenny an acre for indifferent land up to a maximum of threepence an acre for fertile land in the most favoured districts. The existing African villages and farms were exempted from these sales, and the villagers were told that their homes and fields were not being alienated. Initially, the exact boundaries in many of Johnston's land grants were unclear, but in 1895 government surveyors were appointed and to record these boundaries on official plans[9]
Non-disturbance clauses
In addition, most Certificates of Claim included a non-disturbance clause providing that existing African villages and planted areas were not to be disturbed without consent from the protectorate government.[10] The non-disturbance clauses were largely ineffective, firstly because the landowners routinely ignored them with impunity, secondly because the land occupied by Africans at the date of the certificate was not recorded and thirdly, the practice of shifting cultivation meant that much of what Johnston thought was unoccupied or waste land near villages was land that was temporarily out of use and resting under local variants of the Chitemene system that is still employed in parts of Zambia.[11][12]
In the early years of the protectorate, the owners usually did not object to Africans resident on their estates practising shifting cultivation and moving their fields every few years, as they wanted to retain existing residents and attract new ones as a workforce. However, any new residents, many of which were migrants from Mozambique, were obliged to provide unpaid labour in lieu of rent for the land they occupied, under the system of thangata. Although original residents were, at least in theory, exempt from this form of labour rent, once cotton started to be grown commercially after 1901, followed by widespread planting of tobacco from 1905, this exemption came under attack.[13] Both crops needed a great deal of labour during their growing seasons, and owners attempted to reduce all residents to the status of insecure labour tenants, who could be evicted at will. This was resisted, and some original residents or their descendants moved to land outside the estates rather than remain as labour tenants.[13] The situation was not finally resolved until the colonial administration's Natives on Private Estates Ordinance 1928 removed the distinction between descendants of original residents and others by abolishing non-disturbance clauses.[14]
Certificates of Claim granted
Johnston received and reviewed 66 claims related to land and seven for mineral rights. Of the land claims, five related to land in German East Africa or North-Eastern Rhodesia so Johnston only had jurisdiction over 61 claims. Only two of these claims were rejected outright, with a handful reduced in size, and Johnston issued 59 Certificates of Claim for land in British Central Africa. Only one certificate was issued to an African in his own right; this was for 37,947 acres granted to Kuntaja. Kuntaja had bought this land from various chiefs between 1888 and 1891 and he did so acting not as a community leader or representative but as an entrepreneur in his own right. His claim to the Chilingani Estate, Blantyre, was granted in 1893 and the land was disposed of at a profit in the same year to three European buyers, including 26,537 acres sold to Joseph Booth of the Zambezi Industrial Mission.[15] The largest certificate granted related to land in what is now the Northern Region of Malawi but almost all the others were for land in the Southern Region, particularly the Shire Highlands, a largely fertile area with reasonable transport links to the east coast.[16]
The largest grant under a Certificate of Claim was of over 2.7 million acres, amounting to almost all of what was then the North Nyasa District (covering all of today's
Each of the three next-largest claims had been purchased by individuals but later transferred to companies.
Later history of Certificates of Claim
No Certificates of Claim were issued after March 1894, when it was calculated that 3,705,255 acres has been alienated, although later, more accurate, surveys reduced the total to 3,691,767 acres. When further areas of Crown land were alienated, or where parts of any estate that had been comprised in a Certificate of Claim was sold, the owner was granted a freehold title.[24] When land comprised in such a certificate came into the ownership of the protectorate through purchase or forfeiture, it became Crown land. Most unalienated Crown land became Native Trust Land in 1936 by virtue of the Nyasaland Protectorate (Native Trust Lands) Order, 1936.[25]
The amount of land held under Certificates of Claim was still in excess of 600,000 acres in 1948, when a Land Planning Commission reviewed landownership, but the future of many estates was in doubt by then, and at independence in 1964 only 422,000 acres of European-owned estates remained, mainly tea estates, not all held under Certificates of Claim.
Economic effects
John Buchanan, and possibly others among the major landowners, intended to sell off parts of their holdings to later settlers as medium-sized estates. However, although Johnston registered most of the land acquisitions made before 1891 and soon after, his policies had the effect of freezing the situation as it existed in the early 1890s. Firstly, he discouraged further large alienations by making unalienated land Crown Land available to its African communities. This prevented the growth of an indigenous landless proletariat forced to work on European-owned estates, as in much of South Africa or Southern Rhodesia, although it did permit the migration of Mozambican migrants, who formed much of the early estate workforces. Secondly, Johnston discouraged resale of estate land by fixing high prices of five shillings an acre in settled areas and two shillings and sixpence an acre elsewhere. This left the large estates unable to raise capital by selling surplus land. The undercapitalised estates could only farm a fraction of their land, and as a result the economy of Nyasaland stagnated.[29]
See also
References
- ^ B Pachai, (1973). "Land Policies in Malawi: An Examination of the Colonial Legacy", p. 685.
- ^ B. Pachai, (1978). "Land and Politics in Malawi 1875-1975", pp. 36, 151-7.
- ^ J McCracken, (2012). "A History of Malawi", 1859-1966, pp. 77-8.
- ^ Sir Harry Johnston, (1897). "British Central Africa", p. 85.
- ^ J S Galbraith, (1974). Crown and Charter: The early Years of the British South Africa Company, pp. 230-3.
- ^ Sir Harry Johnston, (1897). "British Central Africa", pp. 112-13.
- ^ B. Pachai, (1973). "Land Policies in Malawi: An Examination of the Colonial Legacy", pp. 682-3, 685.
- ^ J G Pike, (1969). "Malawi: A Political and Economic History", p. 127.
- ^ J McCracken, (2012). "A History of Malawi", 1859-1966, pp. 65-6.
- ^ Sir Harry Johnston, (1897). "British Central Africa", pp. 107-8, 112-13.
- ^ a b B. Pachai, (1978). "Land and Politics in Malawi 1875-1975", p. 41.
- ^ R M Moore and M. Vaughan, (1994). "Cutting Down Trees", pp. 22, 30-2.
- ^ a b J McCracken, (2012). "A History of Malawi", 1859-1966, p. 78.
- ^ C Baker, (1993). “Seeds of Trouble: Government Policy and Land Rights in Nyasaland, 1946-1964” pp 11-13, 42-4.
- ^ B Pachai, (1973). “Land Policies in Malawi: An Examination of the Colonial Legacy,” p. 693.
- ^ B. Pachai, (1978). "Land and Politics in Malawi 1875-1975", pp. 38, 41.
- ^ J McCracken, (2012). "A History of Malawi", 1859-1966, p. 77.
- ^ Pachai, (1978). "Land and Politics in Malawi 1875-1975", p. 171.
- ^ Pachai, (1978). "Land and Politics in Malawi 1875-1975", pp. 151-7.
- ^ S.Tenney and N K Humphreys, (2011). "Historical Dictionary of the International Monetary Fund", p. 452.
- ^ J McCracken, (2012). "A History of Malawi", 1859-1966, pp. 78-9.
- ^ L White, (1987). “Magomero: Portrait of an African Village,” pp. 82, 110-11.
- ^ Nyasaland Protectorate (1929) "Report of the Lands Officer on Land Alienations", pp. 7-11
- ^ Nyasaland Protectorate (1929) "Report of the Lands Officer on Land Alienations", Schedules A, B and C.
- ^ J Power, (1992). 'Individualism is the Antithesis of Indirect Rule': Cooperative Development and Indirect Rule in Colonial Malawi, Journal of Southern African Studies, Vol. 18, No. 2, p. 330.
- ^ B. Pachai, (1978). "Land and Politics in Malawi 1875-1975", pp. 136-7.
- ^ J McCracken, (2012). "A History of Malawi", 1859-1966, pp. 455-7.
- ^ Malawi Legal Information Institute, the Laws of Malawi, Chapter 57:01, Land Act. "Land Act | Malawi Legal Information Institute". Archived from the original on 2013-06-23. Retrieved 2013-01-19.
- ^ L. White, (1987). Magomero: Portrait of an African Village, pp. 81-2, 85.
Bibliography
- Pachai, Bridglal (October 1973). "Land policies in Malawi: an examination of the colonial legacy". The Journal of African History. 14 (4): 681–698. .
- B. Pachai, (1978). "Land and Politics in Malawi 1875-1975", Kingston (Ontario), The Limestone Press
- J McCraken, (2012). "A History of Malawi, 1859-1966", Woodbridge, James Currey. ISBN 978-1-84701-050-6.
- J S Galbraith, (1974). Crown and Charter: The early Years of the British South Africa Company, University of California Press. ISBN 978-0-52002-693-3
- Sir Harry Johnston, (1897). "British Central Africa: An Attempt to give some Account of a Portion of the Territories under British Influence North of the Zambezi", New York, Edward Arnold. https://archive.org/stream/britishafrica00johnuoft/britishafrica00johnuoft_djvu.txt
- J G Pike, (1969). "Malawi: A Political and Economic History", London, Pall Mall Press.
- R M Moore and M. Vaughan, (1994). "Cutting Down Trees: Gender, Nutrition, and Agricultural Change in the Northern Province of Zambia, 1890-1990", London, James Curry. ISBN 978-0-4350-8-088-4.
- C Baker, (1993) “Seeds of Trouble: Government Policy and Land Rights in Nyasaland, 1946-1964”, London, British Academic Press
- Tenney, Sarah; Humphreys, Norman K. (2011). Historical dictionary of the International Monetary Fund (3. ed.). Lanham, Md.: Scarecrow Press. ISBN 978-0-81086-790-1.
- L. White, (1987). "Magomero: Portrait of an African Village", Cambridge University Press. ISBN 0-521-32182-4.
- Nyasaland Protectorate (1929) "Report of the Lands Officer on Land Alienations", Zomba, Government Printer
- Malawi Legal Information Institute, "The Laws of Malawi, Chapter 57:01, Land Act". https://web.archive.org/web/20130623013448/http://www.malawilii.org/mw/legislation/consolidated-act/5701