This is a paper discussing the limitations imposed by law (common and statutory) on land in Zambia. Land in Zambia is governed using the Land Act Chapter 184. According to section 3(1) of the Land Act, all land in Zambia is vested in the President who is to hold it forever on behalf of the people of Zambia[1]. The President is empowered by the Land Act to alienate land to any Zambian or non-Zambian. The conditions under which the President can alienate land to a non-Zambian are set out under Section 3(3) of the Land Act.
In particular, the President can alienate land to a non-Zambian, inter alia, when the non-Zambian is a permanent resident in Zambia or is an investor as defined by the Investment Act or any other law relating to the promotion of investment in Zambia. Taking note of the fact presented by section 3(1) of Chapter 184, land ownership in Zambia is thus not absolute. Land is given to a person (corporate or individual) on rental basis. This makes those having “ownership” of land in Zambia have an interest in the land in that they will possess that interest but will not own the land.
In this regard, land in Zambia is alienated on tenure basis as leasehold or customary. A leasehold is defined as a right to hold or use property for a fixed period of time at a given price, without transfer of ownership on a basis of a lease contract. This definition is in line with the sense contained in section 3(1) of the Land Act in that land given under this method is rented out to one for a period of 99 years and the recipient is expected to pay a price in form of, among others, ground rates to the Government of the Republic of Zambia.
This aspect is confirmed in section 4(1) of the Land Act which forbids the President from alienating land when no consideration is given in money form for the alienation and ground rent for the land, respectively[2]. The President can only give Land under leasehold method for free if the land is to be applied for public purposes only. Customary tenure is recognized in Zambia as the other form of landholding by the Lands Act of 1995.
Customary tenure comes about when one holds land that was referred to as Reserve land and Trust land before the commencement of the Land Act. [3] One acquires rights to customary land by clearing up the land that has no other person claiming it. This is usually done by persons indigenous to the area where the free land is situated and the rights once established become permanent unless they are extinguished by abandonment or by death.
The permanence of rights does assure security of tenure. The Land Act of 1995 under section 8(1) does give room for the conversion of customary landholding to leasehold. However, section 8(2) of the Land Act of 1995 does state that there can be no conversion of customary land to leasehold without the express consent of the traditional rulers ( Chief) of the area where the land is situated[4]. The forgoing is but one of the limitations regarding land ownership in Zambia.
The other limitations emanate from the latin maxim “cuius est solum eius usque ad caelum ad inferos[5]” which literally means that once one own land, he owns what is in its depth and what is above it to the heavens. This is a general expectation to whoever is getting land. However, limitations to this expectation are presented by laws governing natural resources found on/in the land in Zambia. a) Water: This resource if found on your land is governed by the Water Act, Chapter 198 of the Laws of Zambia.
Section 5 of the Act reserves ownership of all water in Zambia for the President. This means that one does not own water by virtual of one acquiring land that has such water on it. The Act provides for the classification of water into two categories these being private and public water. The Act gives free way to the land owner having water within the boundary of his land as long as that water does not traverse the boundary of the land in anyway be it by a stream flowing from his water beyond the land boundaries or any other means.
Such water occurring solely within one’s boundary is called private water. For one to have access to public water which is water that traverses one’s land boundary permission has to be obtained from the Water Board secretary unless the use of the water is primary i. e for domestic purposes. b) Minerals: This resource, if found on one’s land is controlled by the Mines and Minerals Act chapter 213 of the Laws of Zambia. Section 3 of the Act states that all rights to minerals in Zambia is vested in the Republican President.
This means that if one found minerals on his land he has no right over them as they belong to the Republican President on behalf of the people of Zambia. Therefore, one need to apply for permission from the Republican President if he has to access the minerals. It should also be noted that minerals in Zambia are also governed by common law as adapted from the English Law regarding Minerals in one’s Land. At common law the minerals are specifically mentioned as Gold and Silver meaning that if any of these occur in your land then they automatically belong to the State. ) Wildlife: This resource if found on one’s land is controlled by The National Parks and Wildlife Act Chapter 201 of the laws of Zambia. The Act defines wildlife as wild animals or birds of species which are found in a wild state and vegetation which is indigenous to Zambia and grows naturally without cultivation. [6] According to section 3 of the Act, the absolute ownership of every wild animal existing in its natural habitat within Zambia is vested in the Republican President on behalf of the People.
This entails that if one finds wildlife on one’s land, that wildlife is owned by the Republican President and to have access to wildlife one needs to have permission of the Director of National Parks and Wildlife Services. This is in line with the common law requirement that states that wildlife are things without an owner. However, in both statutory or common law if such wildlife is lawfully indisposed or caught as long as it is not game or a protected animal, the remains of the wildlife become the property of the owner of the land upon which those remains are. ) Structures: the erection of structures on the land is regulated by the Town and country Planning Act chapter 283 of the Laws of Zambia and the Public Health Act chapter 295 of the laws of Zambia. It is a requirement under section 22 of chapter 283 that permission is obtained for any development or sub-division of land. The permission for development is restricted to areas where there is an order to prepare a structure plan or local plan; or where the structure plan or local plan already exists; and in such areas as are within twenty miles from the areas were orders for structure plans are needed.
The Act thus limits free style developments in specified areas but allows such in areas like farms. The land in Zambia is further controlled by the public health Act which gives power to the Director of Medical Services and his officers to enter any premises in the course of their duty and in a situation of an epidemic, he/she can requisition any land or building deemed fit to assist in carrying out of his mandate. Refusal of Director of medical services when he/she makes such a requisition is an offence.
The Act further mandates the Director to order demolition of any structure that is found to be unfit for human habitation. This can either be poorly constructed or dilapidated buildings and/or rooms without through ventilation[7]. e) Compulsory Acquisition: As earlier indicated, all land in Zambia is vested in the Republic President on behalf of the Republic who has the mandate to give out land on rent basis i. e. leasehold.
This means that if one acquires land in Zambia, the land is not his/hers but he is simply a tenant and the Republican President being the Landlord can repossess the said land at any time but within specified conditions spelled out by Article 16(1) of the Constitution of Zambia as read together with the provisions of the Land Acquisition Act Chapter 189 of the Laws of Zambia. (B) The facts are that the Republican President has decided to reverse the sale of a Public Company that deals in telecommunication, a company that was owned by the Zambian people and was sold to a foreign company.
The reasons cited for the reversal is that the sale was marred with corruption. The rule is contained in section 3 of chapter 189 of the Laws of Zambia which states that the President may whenever he is of the opinion that it is desirable or expedient in the interest of the Republic so to do, compulsory acquire any property of any description. The issue is that the foreign company LAPBLUE LIMITED wants to know the status of its ownership. The starting point is the Constitution of Zambia which in article 16(1) protects against deprivation of property in Zambia.
It categorically forbids the compulsory taking or acquiring of property of any form unless that taking or acquiring is done under an Act of Parliament which provides for adequate compensation for the property in question. The Republican President is given powers under Chapter 189 of the Laws of Zambia to compulsorily acquire any property in Zambia were he/she feels desirable or expedient in national interest. Zamphone was a public company, a sole, Government investment before it was sold to Lapblue.
This therefore meant that taxpayer money through Parliamentary appropriations was spend on the setting up of the said company and capitalizing it to the point of sale. In this respect the company was and is still of public interest to the people of Zambia. This being the case, Article 16(2)(w) of the Zambian Constitution , being one of the exceptions to 16(1), allows for compulsory acquisition without compensation if the property is held by a body corporate established by law for public purposes and in which no moneys have been invested other than moneys provided by Parliament.
The company ZAMPHONE was one such property until its sale. There is need, therefore, to establish whether there has been any extra investments made into the company by the LAPBLUE apart from the price paid for the acquisition of the ZAMPHONE. Article 16(1) of the Constitution indicates that it is allowable for property to be compulsorily taken over if the taking is done under an Act of Parliament which Act should provide for adequate compensation for the property being taken over.
The Republican president is given power to compulsorily acquire property under Chapter 189 of the Laws of Zambia which Chapter is an Act of parliament and in part III of the said Act is provided compensation and how such compensation is computed. This thus puts the Republican president on firm ground to effect compulsory acquisition of the phone company using Chapter 189 of the Laws of Zambia. The provision under section 3 of Chapter 189 of the Laws of Zambia states, inter alia, that the President can effect compulsory acquisition when he/she ‘….. s of the opinion that it is desirable or expedient….. ’ It is stated as a fact that the Republican President has cited corruption in the sale transaction as the reason for effecting a compulsory acquisition of ZAMPHONE. In the stand of the words “ desirable or expedient”, the issue of corruption or undue influence can legally result in the President considering the situation being desirable or expedient so as to result in a compulsory acquisition. The learned judges in the case of ZAMBIA NATIONAL HOLDINGS LIMITED AND UNITED NATIONAL INDEPENDENCE PARTY (UNIP) v.
THE ATTORNEY-GENERAL[8] did indicate that grants made to UNIP by Parliament could be retrieved if it could be proved that Parliament that made those grants was corrupt or was under undue influence when making those grants. Extending this argument to the transaction of ZAMPHONE, it can be said that the President is in order to effect compulsory acquisition of the phone company if indeed corruption can be proved to have occurred during the sale. Despite the forgoing, the shareholders (LAPBLUE) of ZAMPHONE have a chance to challenge the compulsory acquisition in the courts of law.
Section 11(1) of Chapter 189 of the Laws of Zambia gives leeway to any one disputing a compulsory acquisition to take the matter before the court of law. The Act thus gives the owner of the property being acquired or taken over by the President recourse to the courts to challenge the legality and constitutionality of the compulsory acquisition and even the question of compensation if there is no agreement. The owner of the property can also challenge the acquisition on the basis that the laid down procedure regarding acquisition was not followed.
For example if the acquisition had no notice as per section 5 of Chapter 189 of the Laws of Zambia, that maybe a chance to challenge the acquisition under mala fides. With the foregoing, in this matter, the company ZAMPHONE will belong to the Government of Zambia once the Republican President invoke his powers under section 3 of chapter 189 of The Laws of Zambia. Conclusion The ownership of land in Zambia is not absolute in that one may only possess rights in land by virtue of him having interest or rights under leasehold and satisfying the conditions of the leasehold i. paying ground rent. This thus entails that limitation to ownship occur such that one cannot claim ‘cuius est solum eius usque ad caelum ad inferos” over land held on leasehold in Zambia. The limitations imposed over land relate to among others water, wildlife, minerals,etc. There is also control in certain situations on the use of the land and the structures that can be attached to the land as seen under the Public Health Act and the Country and planning Act.
The land and any property in Zambia can also be legally repossessed at the pleasure of the Republican president and powers to support such acquisition are enshrined in the Lands Acquisition Act chapter 189 of the Laws of Zambia. However, compensation is assured for such take over except in certain circumstances spelt out in the ACT. The compulsory acquisition can be challenged in a court of law if it can be shown that it was not done in the interest of the public or that there was a mala fides behind the takeover.
