Law, land reform and responsibilisation:

A perspective from Malawi’s land question

Chikosa M Silungwe

2015

Law, land reform and responsibilisation: A perspective from Malawi’s land question

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iii

TABLE OF CONTENTS

Acknowledgments v

Dedication vii

Introduction 11 The context 12 Rationale and main argument 83 Market as value and land reform modelling 14

3.1 Market as value 153.2 Power dimension of land reform 193.3 Market-based land reform models 213.4 Reflection on market-based land reform

modelling 274 On responsibilisation 295 On method 306 Final word 32

Governmentality, responsibilisation and the land question 351 Thinking theory 362 The Foucauldian ‘idea’ of governmentality 37

2.1 Governmentality and analytics of power 422.2 Governmentality and law 44

3 ‘Everyday struggles’: Conduct and counter-conduct 45

4 Responsibilisation: A framework for analysis 464.1 The nature of hegemonic responsibilisation 464.2 The nature people-generated responsibilisation 47

5 Governmentality-responsibilisation: Whither the resolution of land question in Malawi? 50

6 Final word 51

‘Right’, ‘property’ and the ‘customary’ space: Conceptual issues and the land question 531 The nature of the right to property 54

1.1 Character of a ‘right’ 551.2 The meaning of ‘property’: The right to

property as a social relation 562 The right to property in land: An analysis of the

‘customary’ space 602.1 The root of the ‘customary’ space 612.2 The nature of ‘customary’ (land) tenure 66

3 The beneficial interest in land: ‘Customary land’ under the Malawian Land Act 72

4 Final word 75

1

2

3

iv

Global-local policy linkage, responsibilisation and the land question 771 Global-local policy linkage 78

1.1 The World Bank’s land policy framework, 2003 791.2 The national macroeconomic framework as a

site of conformity 812 National policy interventions in the land question 88

2.1 ‘Let sleeping dogs lie’: The Presidential Commission of Inquiry on Land Policy Reform, 1996 91

2.2 The land utilisation studies, 1995-1998 962.3 The National Land Policy 1002.4 Intervention of the Malawi Law Commission 1102.5 The Green Belt Initiative 114

3 Final word 120

A multiverse of interests and the land question 1231 The state and the Achikumbe 1252 The state and the land deprived 1303 The Achikumbe and the land deprived 1354 The intra-‘community’ dynamics 139

4.1 The role of chiefs 1394.2 Eni malo and obwera: The ‘internecine’ conflict of

the land deprived 1415 The nature of the multiverse 1456 Final word 147

Last word: Towards a responsibilised state 1491 Reiterations 1492 The nature of people-generated responsibilisation:

The basis of the responsibilised state 1532.1 Public trust and social trust: The constitutional

basis of people-generated responsibilisation 1542.2 Counter-conduct and the beneficial interest in

land 1572.3 The land question in the political economy 162

3 The responsibilised state: A restatement 1654 Final word 166

4.1 The presumptions 1664.2 The wider angle 167

5 The thesis: a précis 168

Bibliography 171

4

5

6

v

ACKNOWLEDGMENTS

This book has grown from a doctoral thesis that I submitted to theUniversity of Warwick. As I developed my ideas contained in this book,many people have been generous, inspirational and selfless. AbdulPaliwala and George Meszaros, my first and second supervisorrespectively, were full of advice, banter and critique. Sammy Adelman,Upendra Baxi, Peter Fitzpatrick, Garton Kamchedzera, Fidelis EdgeKanyongolo, Ngeyi Ruth Kanyongolo, Ambreena Manji, Boaventura deSousa Santos and Andrew Trevor Williams provided invaluable insightthat took a number of the ideas here forward. I shall forever be grateful tothe University of Warwick for the financial support throughout mydoctoral research. Jennifer Mabbett was very helpful with administrativeissues in the Law School.

From a distance, I have always admired the work of the Institute forPoverty, Land and Agrarian Studies (PLAAS), School of Government,The University of the Western Cape. It was a pleasure to interact with, andpresent my work to, the faculty of PLAAS in November 2010. ProfessorBen Cousins & Co, keep the fire burning.

My family and friends have constantly shaped and re-shaped my worldview over the years. To everyone in the family – the paternal and maternaltrees of the Sindano Walyapaili Silungwe clan and the MwakipundaMwaungulu clan – I cannot thank you enough. I would like toacknowledge in a special way the support from my mother, MatildaAudrey Silungwe (née Mwaungulu); and my sisters, Towela Golda Nyika(née Silungwe), Ruth Walusungu Nanthambwe (née Silungwe) andLimbani Silungwe. I also acknowledge the support from my father, DonSilungwe; Aunt Ruth – Ruth Mwakalasya Mtawali (née Mwaungulu);Geoffrey S Mwaungulu, Sr, MD and Mary Mwaungulu; Uncle Pat –Patani Mhone and Dr Ethel Mhone; and Dr Herbert Matiti and MilikaMatiti, PhD.

To my friends – departed and those still living and spread around theworld – I have learnt a lot from you. I salute the following kings: BonifaceBanda; John Suzi Banda; Kelvin Kanswala Banda; Matthews KaningaBanda; Sibonele Banda; Ken Bowazi; the late Harold Samuel Chafuwa;Tamanda Llipwithi Chidzanja; Marshal Chilenga; Saulos Klaus Chilima;Trevor Chimimba; Zangaphee Chimombo; Allan Joseph Chintedza;Enoch Chinyamunyamu; Ishmael Stan Chioko; Danwood MzikengeChirwa; Mtchera James Chirwa; the late Alfred Dawa; Elias Dziko; EzraDzoole; Altaf ‘Charlie’ Gani; Robert Hansell; Edgar ‘Lyan Louie’ Hassan;Abou Jeng; Kalenga Jere; Harold Jiya; Patrick Kabambe; JeffreyKabondo; Michael Kachere; David Chikumbutso MasoatengenjiKadzamira; Sylvester Kadzola; Bruno Kalemba; Sylvester AugustinoKalembera; Chikumbutso James Kalilombe; the late David HarrisKamkanda; Isaac Katopola; Dan Kuwali; Richard Kuwali; TitusNeverson Kuweruza; Pempho Likongwe; George Desiderio Liwimbi;George Lwanda; Dingiswayo Tanangachi Kanyolokera Madise; IanMichael Malera; Kenan Tilombe Manda; Jarvis Matiya; AlisonMbang’ombe; the late Benard Perez Mhango; Walter Vuyo Miseleni;

vi

Peter Mkali; Alex Mchawe Mkandawire; Watipaso Mkandawire; the lateHuxley Mlozi; Paul Montfort Mphwiyo; William Yakuwawa Msiska;Austin Boli Bwagadu Msowoya; Ernest Chimwemwe Mtawali; MwizaMtegha; Herbert Mukasa; Frank Mvalo; Dominic Mwafulirwa; MtchukaGeorge Mwale; Sam Mwenifumbo; Crispin Mzengereza; Orama ArthurNanthuru; Benard Mkweche Winston Ndau; Sam Ngwira; the late PeterNjikho; McBride Nkhalamba; James Nkuta; Cosby Ungweru Nkwazi;Oche Onazi; the late Holman Malata Phiri; Richard Edward Santhe;Yaperekamizimu ‘Yappy’ Silungwe; Mateyu Sisya; Papa Sow; SamTembo; Carlos Gomes Varela; Joshua Antonio Varela; BenWandawanda; Patrick Westenhoff; Eric Yesaya; and Moza Zeleza.

I would not be the professional I am today if it were not for a lot of giantswho have inspired or mentored me along the way. I recognise thefollowing: Gracian Zibelu Banda; the late Hermes Chidammodzi, PhD;the Honourable Justice of Appeal Lovemore Paulo Chikopa, SC; theHonourable Justice of Appeal Anaclet Chipeta, SC; Meyer GravelChisanga; Gertrude Lynn Hiwa, SC; Garton Kamchedzera, PhD; FidelisEdge Kanyongolo, PhD; the Honourable Justice of Appeal FrankKapanda, SC; the Honourable Justice John Katsala; the late DidierNjirayakumanda Kaphagawani, PhD; Kalekeni Elson Kaphale; StanleyKhaila, PhD; the late MacKnight Rabson Elias Machika, PhD; PromodhMalhotra; Professor Thandika Mkandawire; Modechai Msisha, SC; TitusEdward Songiso Mvalo; the Honourable Justice of Appeal DunstanFipamtima Mwaungulu, SC; the late Anthony Nazombe, PhD; theHonourable Justice of Appeal Andrew KC Nyirenda, SC; the HonourableJustice Kenyatta Nyirenda; the late Temwa Chanaichi Nyirenda;Professor Emeritus Abdul Paliwala; Professor Emeritus KingsMbachazwa Phiri; Roger Rose; Krishna Savjani, SC, OBE; theHonourable Justice of Appeal Elton M Singini, SC (retired); theHonourable Justice of Appeal Edward Twea, SC; the Honourable ChiefJustice Leonard E Unyolo, SC (retired); and Professor Tiyambe Zeleza.

Beyond the formality of the academy, this book also arises out of anagitated mind. It is common to find descriptions of other human beings inland disputes before the courts in Malawi as ‘Persons Unknown’;‘Unidentified Persons’ and such other pejorative language. In analysingthe land question in Malawi, this book serves as a humble contributiontowards the emancipation – the revolution – of ‘Persons Unknown’ or‘Unidentified Persons’.

I also acknowledge the editorial support from the Pretoria UniversityLaw Press; particularly Lizette Hermann.

Finally, as the poet once said and I reiterate: ‘I have been raised bywomen and because of them; I am the man I am today.’1 To you all –women (you know who you are) – I thank you.

CMSLilongwe, Malawi

December 2013

1 This is an adaptation from Gil Scott Heron ‘On coming from a broken home: Part 2’I’m new here, XL Recordings, 2010.

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DEDICATION

To my mother,Matilda Audrey Silungwe (née Mwaungulu):

In Admiration.

1

1 The context

It is back as part of the prime time news bulletin: ‘People of country X areagitating for access to farmland in their country. Government is yet torespond’. There are variations, but the gist of such news item is the call forland reform. But what is land reform? Land reform – howeverconceptualised – continues to dominate debate in development discourse.Indeed, at the turn of the 1990s, there emerged what was referred to as the‘new wave’ of land reform which has been cross-spatial and pervasive inAfrica, Asia and Latin America. This ‘new wave’ of land reformsupposedly adopted a ‘human-centred’ approach with a decentred focus oneconomic growth as a measurement of (national) development.1 The ‘newwave’ is really part of a continuum. In sub-Saharan Africa, for instance,land reform has been omnipresent in various shades since the onset ofinformal imperialism and the entrenchment of European domination onthe continent under the new imperialism period.2 The impetus for landreform in postcolonial Africa has been multifarious. This has included thedesire to address the historically situated problem of access to availablearable land for the land deprived; the eradication of impoverishment; theguarantee of food security; and the assurance of economically efficientland use for the growth of the colonial, and later, postcolonial economies.

1 C Toulmin & J Quan ‘Evolving land rights, tenure and policy in sub-Saharan Africa’ inC Toulmin & J Quan (eds) Evolving land rights, policy and tenure in Africa (2000); andWorld Bank Land policies for growth and poverty reduction (2003). Cf also S Adelman &A Paliwala ‘Law and development in crisis’ in S Adelman & A Paliwala (eds) Law andcrisis in the third world (1993) 1.

2 ‘Informal imperialism’ refers to the arrival of white missionaries and ‘entrepreneurs’ inAfrica prior to the 1880s. ‘The new imperialism period’ refers to the period followingthe Berlin Conference on the partition of Africa in 1884 and the start of the First WorldWar: K Shillington History of Africa (1995).

1CHAPTER INTRODUCTION

2 Chapter 1

Land reform proceeds on an aspiration ‘to improve by altering’; ‘tocorrect an error’ or ‘to remove a defect’; and indeed ‘to make better’.3 Thisneed to improve through altering, correcting errors, removing defects, ormaking better implies the existence of an underlying ‘problem’ with astatus quo relating to the land relations in a country. This problem withland relations does not relate to land for its own sake. It refers to therelation of the human being as a member of society – a social being – andland as a resource for a livelihood. The problem is what has been referredto as the land question. Land reform is (ideally) a strategy to address a landquestion.

In sub-Saharan Africa, while there is a plethora of literature on landreform, the opposite is the case regarding literature on the African landquestion or land questions of specific countries. However, thedetermination of the nature of the African land question is importantbecause it has implications for the ‘purpose’ and ‘direction’ of land reformon the continent generally and indeed in particular countries.4 A clearlydefined land question must lead to clearly established purpose anddirection of land reform. However, if there is a key conception whereconfusion and dissensus looms large then it is the nature of the Africanland question. This confusion and dissensus has undermined the purposeand direction of land reform on the continent. There are two levels throughwhich one can engage with the determination of the African land question.The first level is spatial and the second is conceptual.

At the spatial level, it is not clear from the scholarship whether there isa continent-wide African land question or it is more precise to discuss ahost of African land questions where each question is peculiar to a specificcountry.5 At the conceptual level, the debate has centred on the nature ofland tenure in the pre-colonial and the postcolonial African society. Thisdebate has focused on the presence or absence of individual tenure asopposed to communal tenure in land.6 It has also raised fundamentalissues regarding the conception of ‘right’, ‘property’ and ‘tenure’.7 So far,the approaches to the African land question reveal its complication such

3 CT Onions The Oxford dictionary of English etymology (1966) on the definition of‘reform’.

4 On the debate on the purpose and direction of land reform see: A Manji The politics ofland reform in Africa: From communal tenure to free markets (2006); and C Walker et al(eds) Land, memory, reconstruction, and justice: Perspectives on land claims in South Africa(2010)

5 S Moyo ‘African land questions, the state and agrarian transition: Contradictions ofneoliberal land reforms’ (2004) (on file with the author); A Mafeje ‘The agrarianquestion, access to land, and peasant responses in sub-Saharan Africa’ Civil Societyand Social Movements Programme Paper Number 6, Geneva, UNRISD (2003);S Berry ‘Debating the land question in Africa’ (2002) 44 Comparative Studies in Societyand History 638; and H Bernstein ‘Rural land and land conflicts in sub-Saharan Africa’in S Moyo & P Yeros (eds) Reclaiming the land: The resurgence of rural movements in Africa,Asia and Latin America (2005) 67.

6 PE Peters ‘Inequality and social conflict over land in Africa’ (2004) 4 Journal ofAgrarian Change 269.

Introduction 3

that its analysis, if at all, must be wary of essentialism. This complicationis particularly exacerbated by the multiplicity of interests of variousconstituencies competing for the control of access to available arable land.Berry states:

The significance of land conflicts for contemporary processes of governanceand development in Africa lies not only in the way they have been shaped bypast events, but also in their salience as arenas for the production of history.

Because they often involved multifaceted debates over power, precedence andentitlement, struggles over land have also varied in intensity and outcome,depending on the particular social, economic, and political contexts in whichthey occurred. By drawing attention to the ubiquity of land conflicts in Africain recent years, and to commonalities in the causes of land scarcity and thedebates it engenders, I am not attempting to reduce the land question to asingle story, but rather to emphasise the importance of situating land strugglesin specific historical contexts, taking account of the way multiple interests andcategories of people come into play, and impinge on one another, as peopleseek to acquire, defend, and exercise claims on land.8

Beyond this avowed complication of the African land question, historyand context must be taken into account in its examination.9 History andcontext are important precisely because of the complication of the landquestion itself and the nuances that have shaped specific land struggles indifferent African countries.10 However, there are commonalities that maybe attributed to the African land question for analytical purposes. Thesecommonalities are the nature of colonial capitalism,11 the law and policy

7 K Akuffo ‘The conception of land ownership in African customary law and itsimplications for development’ (2009) 17 African Journal of International and ComparativeLaw 57.

8 Berry (n 5 above) 640.9 As above.10 Berry (n 5 above) 639.11 For the ‘macro-regions’ shaped by colonialism in sub–Saharan Africa: see S Amin

Unequal development: An essay on the social formations of peripheral capitalism (1976) citedin Bernstein (n 5 above) 68-70. For accounts of the colonial encounter in Malawi andits effect on land relations, see for example B Pachai Land and politics in Malawi, 1875-1975 (1978); C Baker Seeds of trouble: Government policy and land rights in Nyasaland, 1946-1964 (1993); MRE Machika Law and economic development: A study of land law andagriculture in Malawi, Kenya and Zambia unpublished PhD thesis, University ofBirmingham, 1983; C Ng’ong’ola ‘Design and implementation of customary landreforms in central Malawi’ (1982) 26 Journal of African Law 115; C Ng’ong’ola Statutorycontrol of land and the administration of agrarian policies in Malawi unpublished PhD thesis,University of London, 1983; C Ng’ong’ola ‘The state, settlers, and indigenes in theevolution of land law and policy in colonial Malawi’ (1990) 23 The International Journalof African Historical Studies 27; and FE Kanyongolo ‘Land occupations in Malawi:Challenging the neoliberal legal order’ in Moyo & Yeros (n 5 above) 118.

4 Chapter 1

framework of the emergent state,12 and economic globalisation.13 Thesecommonalities are a means of concretising the history and context of theAfrican land question and may assist in unravelling the nuance andcomplication around the question.14

There is also a socio-economic explanation to the African landquestion. The African postcolony is replete with the absence of asignificant non-agricultural economic base. In this respect, the landquestion is intertwined with the agrarian question; the latter beingconcerned with land use for optimal agricultural productivity in a politicaleconomy.15 The quest for access to available arable land for the landdeprived remains a never-ending struggle.16 Indeed, in the context ofZimbabwe, Tshuma states:

[T]he land question goes beyond the mere concentration of land in a fewhands which is the economic basis for the domination and exploitation ofthose without land. In addition, the land question has a political aspect whichusually assumes the form of state support for exploitative landlord/tenantrelations. There is thus an articulation of class domination and exploitationthrough the ownership of land with state domination.17

The power dimension to a land question that Tshuma has highlightedimplicates the state in perpetuating a scheme of asymmetrical landrelations. Moyo has gone a step further to suggest that the African landquestion is now ‘unique’ and ‘embeds’ both global capital and the state –and the interests that are thus represented – in the desire to control accessto land for purposes of mineral resources exploitation, agriculturalproduction, biotechnology, tourism and forestry. This new dimension inthe control of land has continued to fortify issues such as rural-to-urbanmigration; rural, urban and peri-urban land deprivation; gender disparityin access to available arable land which favours men over women; and thesupport of the estate sector over the smallholder sector.18

12 Bernstein (n 5 above); Kanyongolo (n 11 above); Machika (n 11 above); G Mhone‘The political economy of Malawi: An overview’ in G Mhone (ed) Malawi at crossroads:The postcolonial political economy (1992) 1; C Ng’ong’ola ‘The post–colonial era inrelation to land expropriation laws in Botswana, Malawi, Zambia and Zimbabwe’(1992) 41 International and Comparative Law Quarterly 117; and S Moyo & P Yeros ‘Theresurgence of rural movements under neoliberalism’ in Moyo & Yeros (n 5 above) 8.

13 S Moyo ‘Land in the political economy of African development: Alternative strategiesfor reform’ (2007) XXXII Africa Development 1; and L Cotula ‘The new enclosures?Polanyi, international investment law and the global land rush’ (2013) 34 Third WorldQuarterly 1605.

14 Moyo (n 5 above) 29-30, and 32. 15 L Tshuma Law, state and the agrarian question in Zimbabwe, unpublished PhD thesis,

University of Warwick, 1995; Moyo (n 5 above); and S Moyo et al ‘The classicalagrarian question: Myth, reality and relevance today’ (2013) 2 Agrarian South: Journal ofPolitical Economy 93.

16 Moyo (n 5 above); and Kanyongolo (n 11 above) 126.17 Tshuma (n 15 above) 21.18 Moyo (n 5 above); and Moyo (n 13 above).

Introduction 5

A country-specific land question: Prefatory remarks about Malawi’s land question

How then may we analyse country-specific land questions? In this book, Isuggest that there are important nuances that arise from the peculiarity ofthe history and context of a specific country. Indeed, in the case of Malawi,the following prefatory observations may be made: In general terms, landalienation underpins the land question in Malawi and this has perpetuatedthe lack of access to available arable land on the part of the land deprived.The ‘unique’ elements that scholars such as Moyo point out have sinceemerged in relation to the African land question also surface in Malawi.Indeed, it is possible to embrace issues relating to migration, urbanisationand gender disparity in considering the land question in Malawi. However,in this book, the following four dimensions embody the nature of the landquestion in Malawi: The nature of colonial capitalism; the neopatrimonialnature of the state; the normative issue of the conception of the ‘customary’space; and the multifaceted interests of the state; the Bretton WoodsInstitutions, particularly the World Bank and the International MonetaryFund; the Achikumbe; and the land deprived.

In relation to the nature of colonial capitalism and the land question inMalawi, the regional context to land alienation in the country is thatMalawi as a British protectorate was a source of cheap labour thatsupported mineral resource exploitation in South Africa, Zimbabwe and,to a lesser extent, Zambia.19 The national context is that under a processof semi-proletarianisation, there was an assured supply of cheap wagelabour for an emergent estate sector, particularly in the Shire Highlands insouthern Malawi, and over time, the rest of the country. There has alsobeen a process of entepreneurisation under the Achikumbe policy scheme.20

The neopatrimonial nature of the state21 is discernible from the‘philosophy’ of the various Administrations in the country; namely, that ofPresident Hastings Kamuzu Banda (the Kamuzu Banda Administration)between 1964 and 1994; President Bakili Muluzi (the MuluziAdministration) between 1994 and 2004; President Bingu wa Mutharika(the Mutharika Administration) from 2004 to April 2012; and President

19 The British declared their colonial authority over Nyasaland (as Malawi was thencalled) through a notification issued by the Foreign Office on 14 May 1891 andpublished in the London Gazette on 15 May 1891. The colonisation lasted until 6 July1964 when Malawi was granted independence: Machika (n 11 above) 46. The territorywas initially named British Central Africa protectorate and was re-named Nyasalandunder the Nyasaland Order-in-Council of 6 July 1907. See also HL Duff Nyasalandunder the Foreign Office (1903) 1.

20 Kanyongolo (n 11 above); S Thomas ‘Economic development in Malawi sinceindependence’ (1975) 2 Journal of Southern African Studies 30; and O Kalinga ‘TheMaster Farmers’ Scheme in Nyasaland, 1950-1962: A study of a failed attempt tocreate a “Yeoman” class’ (1993) 92 African Affairs 367.

21 Neopatrimonialism generally refers to a status quo where political legitimacy is basedon patronage as opposed to principle.

6 Chapter 1

Joyce Banda (the Joyce Banda Administration) from April 2012onwards.22 There are at least two strands to the neopatrimonial nature ofthe state and its implications for the lack of access to available arable landfor the land deprived. The first strand relates to the law and policyframework that was introduced under the Kamuzu Banda Administration.First, the Kamuzu Banda Administration perpetuated colonial practicewhere labour migration to other countries in the region, particularly SouthAfrica, continued. Second, the Administration favoured the estate sectorover the smallholder sector as the key to national economic growth.Hence, while the colonial state largely restricted land alienation to theShire Highlands in southern Malawi, the Kamuzu Banda Administrationrolled out a national plan for the emergence of the Achikumbe throughoutthe country. Third, the Kamuzu Banda Administration also practisedpatronage which had implications for the land question, albeit, thepatronage was policy-driven. The Mutharika Administration is generallysimilar to the Kamuzu Banda Administration to the extent that the lattertwo strategies of the Kamuzu Banda Administration largely underpin theMutharika Administration’s development agenda. Lastly, the secondstrand of the neopatrimonial nature of the state is that under the MuluziAdministration the resolution of the land question was undermined sincethe Administration was dogged by what has been termed the‘democratisation of corruption’.23 The Joyce Banda Administration isrelatively new in office for the conduct of any in-depth analysis of its‘philosophy’. Suffice it to say that the early signs are that the largelyneopatrimonial nature of the state is set to remain.

I expound on the conception of the ‘customary’ space in Chapter 3. Atthis point, it must be noted that the conception of what is ‘customary’ ornot is a theatre of animated contestation. Indeed, what has become‘custom’ or the ‘customary’ is rooted in colonial sovereignty. Theconception of the ‘customary’ and its attendant ‘space’ is a compromise ofthe interpretation of the coloniser and a local, black male elite in thecolonised territories. Hence, in this book, this compromise – this re-subjectification – requires that the ‘customary’ space be placed in invertedcommas as a way of flagging the contestation underway. Second, the spacethat eventually emerges as the ‘customary’ space has a liberal tilt to itsconception which has been influenced by the dominance of market asvalue. This is the case because the ‘customary’ space is often viewed as therepository of residue which can be individualised or privatised under landreform. This conception of the ‘customary’ space has implications for theinterpretation of ‘right’, ‘property’ and ‘tenure’. The interpretation of these‘norms’ has, in my view, influenced the often automatic transition fromland reform to land law reform in countries such as Malawi.

22 D Cammack ‘Malawi’s political settlement in crisis, 2011’ APPP, Background paper04 (November 2011).

23 D Booth et al ‘Drivers of change and development in Malawi’ Overseas DevelopmentInstitute, Working paper 261 (2006).

Introduction 7

Under the fourth dimension, the Achikumbe refers to a coterie of‘progressive’, landowning, ‘smallholder’ farmers and big estate farmers.The big estate farmers are the historically, land owning class in the countrywhile the progressive, landowning, smallholder farmers compriseerstwhile subsistence farmers, ‘senior politicians, civil servants, retirees,and formerly non-agrarian business people’. This category of smallholdershas been described as ‘progressive’ because they have been receptive to,and benefited from, targeted agricultural extension methods, agriculturalcredit markets and farm input subsidy programmes.24 The Achikumbe are acreature of the colonial state – under the ‘master-farmer policy’ – and havebeen perpetuated by the post-colonial state. The Achikumbe have beencrucial for the sustenance of Malawi’s bimodal agricultural policy based asit is on an estate expansion strategy for increased agricultural productionas opposed to universal support for subsistence smallholders.25 TheAchikumbe are also a manifestation of the political patronage that hasunderpinned Malawi’s politics and also in shaping the nature of theneopatrimonial state.

The query remains, however, what does land reform in Malawi seekto achieve? I raise the query bearing in mind that there is a gratuitous focuson changing land tenure and land use systems under the land reforminitiative in the country. The further query then becomes: How muchavailable arable land is at hand in Malawi? In relation to the first query,Malawi underwent a comprehensive land law reform between 1965 and1967 (the 1967 reform) which culminated into the introduction of ‘new’land law and policy in the country. However, there emerged a new cycleof land reform with the Presidential Commission of Inquiry on LandPolicy Reform; the land utilisation studies between 1995 and 1998; theadoption of the National Land Policy in 2002; land law reform at thebehest of the Malawi Law Commission in 2003; and the launch of theGreen Belt Initiative in 2009.

24 Thomas (n 20 above) 38-39; Mhone (n 12 above); Kanyongolo (n 11 above) 123; andM Chipeta ‘Political process, civil society and the state’ in Mhone (n 12 above) 35-36,41. These politicians, civil servants, retirees and business people were often loyal to theruling political party structure of the state.

25 The Achikumbe are in part rooted in the colonial ‘master farmer’ policy wherebylandowning, smallholder farmers were incorporated into the estate sector as part of thestate’s strategy for increased agricultural productivity: Thomas (n 20 above). Thecolonial ‘master farmer’ policy has been perpetuated under the state: Thomas (in thisnote); Mhone (n 12 above); Kanyongolo (n 11 above); Chipeta (n 24 above); Kalinga(n 20 above); J Harrigan ‘Malawi’ in P Mosley et al (eds) Aid and power: The World Bankand policy-based lending: Volume 2 – Case studies (1991) 214; and T Mkandawire‘Agriculture, employment and poverty in Malawi’ (1999). On the 1967 Reform: seeMachika (n 11 above); on the Presidential Commission of Inquiry on Land PolicyReform: Government of Malawi (1999); on the land utilisation studies: B Orr et alPublic land utilization study: Final report (1998), RJG Steele et al Estate land utilizationstudy: The tea plantations of Malawi – The report of the tea estate surveys 1996 and 1997(1997), and BDPA Customary land utilization study: Report on the socio–economic study onland tenure (1998); on the Malawi Law Commission: Malawi Law Commission Draftreport on the review of land-related laws (2006); and on the Green Belt Initiative: PresidentBingu wa Mutharika, State of the Nation Address, 23 June 2009, 11.

8 Chapter 1

In relation to the second query, it is not very clear from the statisticshow much of the land area that is suitable for cultivation in the country isavailable under public landholding or is already in private landholding. Ireturn to the point below. However, it is estimated that as much as 10.48million people – almost 80 per cent of the population of Malawi – havelandholdings of less than 0.5 hectares.26 Indeed, at the turn of the 2000s,the national average per capita of cultivated land area was set at 0.22hectares; with the ‘ultra poor’ holding 0.16 hectare per capita and the ‘non–poor’ holding 0.28 hectares.27 Indeed, in this book, and for purposes ofanalysis, the ‘land deprived’ refers to households with no access to arableland or has access to less than 0.5 hectares of arable land per household.The state, the Bretton Woods Institutions, the Achikumbe and the landdeprived constitute the key constituencies for the resolution of the landquestion in Malawi. The importance of the control of available arable landas a factor of production is, if anything, highlighted by the competinginterests of these key constituencies. The complicated interplay of thesekey constituencies commends itself to further scrutiny. In relation to themultiplicity of interests in land reform, Berry states:

Competition over land has followed myriad social fault lines, pitting nationaland local elites against ordinary citizens, neighbour against neighbour,kinsman against kinsman, and husbands against wives.28

2 Rationale and main argument

Why do we need a book on the land question in Malawi? I locate myrejoinder in the wider African land reform discourse: There is a ubiquity ofa universal, automatic transition from land reform to land law reform intackling a land question in a country. With the newly independent, Africandevelopmental state at the centre of development on the continent from the1950s onwards, there was an equally engaged drive in developmentdiscourse that agitated for the reform of so-called ‘customary’ land tenure.In the context of the English common law postcolony, the call for thereform can be traced to the work by Lord Frederick Lugard in 1922 andRWJ Swynnerton in 1955 respectively.29 The logic of the reform of‘customary’ land tenure in the English common law colony andpostcolony was supposedly premised on the classical economics efficiency

26 Under the census carried out in 2008, the human population of Malawi stands at 13.1million: See National Statistical Office Population and housing census: Preliminary report(2008).

27 E Chirwa ‘Access to land, growth and poverty reduction in Malawi’ (2004) (on filewith the author).

28 Berry (n 5 above) 639.29 Lord Lugard The dual mandate in British Tropical Africa (1965) 280 (the Lugard thesis);

and RWJ Swynnerton A plan to intensify the development of African agriculture in Kenya(1955) (the Swynnerton Plan).

Introduction 9

argument.30 Since the developmental state arose during the heyday of thefirst law and development movement, land reform quickly translated intoland law reform where the formalisation of ‘customary’ land interests wasconsidered the panacea to economic growth of the newly, independent,developmental state. Hence, land reform projects proliferated in sub-Saharan Africa from this period onwards on the back of technicalinterventions by lawyers, economists and other development ‘experts’.31

The trend tapered somewhat towards the late 1980s. This promptedOkoth-Ogendo to declare a ‘crisis’ in African agrarian reform.32 Okoth-Ogendo has observed that the ‘African agrarian “crisis” is an extremelycomplex phenomenon’.33 He has argued that the lack of consensus on the‘precise nature’ of the ‘crisis’ has negatively affected the nature of thesolutions at the national level in terms of ‘policies, plans andprogrammes’.34 He has contended that the ‘crisis’ emerges in part becausethe wrong question and therefore the wrong analysis is deployed in Africanagrarian reform scholarship generally. The analysis of the powerdimensions of land and the control of that power in respect of land tenurehas often been de-emphasised in African land reform discourse.35

In light of the ‘crisis’ and the reverse economic growth that has beenever-present in sub-Saharan Africa, there is renewed vigour for land reformacross the continent. This is the context of the emergence of the ‘new wave’of land reform which follows in the wake of the well-documentedshortcomings of land reform of the 1950s through to the 1980s.36 Manji,writing in 2006, aptly captures the mood of the re-emergence of the debatesaround land reform in Africa:

30 Briefly, the argument states that ownership of an asset under a clearly defined propertyrights regime leads to greater incentive for investment that then leads to greater presentvalue of returns. Under land reform, the value of net returns refers to greateragricultural yield which, in turn, leads to higher productivity. With greater returns, anew cycle of investment commences: K Griffin et al ‘In defence of neo-classical neo-populism’ (2004) 4 Journal of Agrarian Change 361.

31 Peters (n 6 above).32 HWO Okoth-Ogendo ‘Some issues of theory in the study of tenure relations in African

agriculture’ (1989) 59 Africa: Journal of the International African Institute 6. 33 As above.34 Okoth-Ogendo (n 32 above) 6.35 Okoth-Ogendo (n 32 above).36 S Borras, Jr ‘Can redistributive reform be achieved via market-based voluntary land

transfer schemes? Evidence and lessons from the Philippines’ (2005) 41 Journal ofDevelopment Studies 90; K Deininger & H Binswanger ‘Evolution of the World Bank’sland policy: Principles, experiences and future challenges’ (1999) 14 The World Bankresearch observer 247; P McAuslan Bringing the law back in: Essays in land, law anddevelopment (2003); S Moyo Land reform under structural adjustment in Zimbabwe: Land usechanges in Mashonaland provinces (2000); and JP Platteau ‘Does Africa need landreform?’ in Toulmin & Quan (n 1 above) 51; and C Nyamu-Musembi ‘Breathing lifeinto dead theories about property rights: De Soto and land relations in rural Africa’International Development Studies Working Paper Number 272, InternationalDevelopment Studies, 2006.

10 Chapter 1

In many parts of Africa, the last two decades have been characterised bydebates as to the purpose and direction of land reform, the appointment ofcommissions of enquiry into land matters, the formulation of national landpolicies and ultimately by the enactment of new land laws. In short, this hasbeen the age not just of land reform but of land law reform.37

The ‘new’ debates also emerge in the context of an apparent ‘new donorconsensus’ in relation to land reform. The reform, it is suggested within thenew donor consensus, must be ‘more human centred’ in its approach torights in land; must foster pro-poor economic growth; be less driven by‘economic prescription’; and must recognise the diversity in the notions ofproperty rights.38 In this respect, the current wave of land reform in sub-Saharan Africa has emerged in the context of shifts in developmentdiscourse where ‘development’ has been re-conceptualised through asupposedly decentred focus on economic growth.39 The advocates of thenew approach to development emphasise the importance of political,social and legal factors. These factors, when taken together, may be locatedin Sen’s thesis in Development as freedom.40

The World Bank, on its part, has included the socio-political agenda todevelopment under the Comprehensive Development Framework.41 Inrelation to land reform, the Bank has conceded that previous land reformswere flawed in their exclusive focus on the individualisation of ‘customary’land tenure.42 The Bank now advocates the view that a ‘human centred’approach to land reform will enhance legality and legitimacy andultimately guarantee good governance. The ‘new wave’ has its critics whopoint out the often contradictory objectives that emanate from the WorldBank; the Bank’s researchers have tended to be more ‘revisionist’ and‘egalitarian’ while the institution’s official position has robustly gravitatedtowards a more market-based land reform modelling.43

37 Manji (n 4 above) 1.38 C Toulmin & J Quan (n 1 above) 3; and World Bank (n 1 above). 39 D Trubek & A Santos ‘Introduction: The third moment in law and development

theory and the emergence of a new critical practice’ in D Trubek & A Santos (eds) Thenew law and economic development: A critical appraisal (2006) 1.

40 Trubek & Santos (above) 7; and A Sen Development as freedom (1999). This is located inSen’s capabilities approach to welfare where the focus is on a person’s actual ability toincentivise an asset. Under the ‘new wave’, the rhetoric on the decentring emphasisesthat a right to property on its own may not lead to greater agricultural production, thatis, a greater net return of value.

41 The Bank’s former President, James Wolfensohn (1995-2005), argued for an‘integrated approach’ to development: See his speech entitled ‘The other crisis’ athttp://www.worldbank.org/html/extdr/am98/jdw-sp/am98-en.pdf (accessed 4 June2009). The speech became the foundation for the Comprehensive DevelopmentFramework: See http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/STRATEGIES/CDF/0,,contentMDK:20072662~menuPK:60746~pagePK:139301~piPK:261885~theSitePK:140576,00.html (accessed 4 June 2009).

42 The World Bank argues that its Land reform policy paper of 1975 ‘devoted little attentionto the importance of land rights for empowering the poor and improving localgovernance’: World Bank (n 1 above) xiv.

43 Peters (n 6 above).

Introduction 11

Some scholarship on land reform in sub-Saharan Africa such as that byToulmin and Quan,44 McAuslan45 and Manji,46 to mention a few, hasrepeatedly criticised the longstanding malaise where land reform oftentranslated into land law reform. Despite the critiques, the trends in sub-Saharan Africa reveal that this automatic translation is almost ingrained inland reform discourse. The development agencies, particularly the WorldBank, advance an ‘official position’ that lauds the apparent flexibility,adaptability and negotiability of ‘customary’ land-holding.47 Peters hasargued that there is need for an engaged research on the ‘winners’ and‘losers’ in the context of this flexible, adaptable and negotiable landreform.48

This ‘new’ and ‘negotiable’ land reform buttresses the globalisation ofland as a commodity. This book seeks to critique the automatic translationof land reform to land law reform. The central argument is that a proactive,people-based, triangulated approach premised on law and policy in thepolitical economy provides a suitable platform to resolving the landquestion in Malawi. The book develops a Foucauldian-based theory ofgovernmentality and responsibilisation. This is a new approach in landreform and seeks to demonstrate the ‘situations’ and ‘processes’ leading tothe responsibilisation of the land owning constituency as the ‘efficientproducer’ and the land deprived as ‘cheap, wage labour’; it reassesses theconcepts dominant under land reform discourse and argues for theconception of the right to property in land as a social relation in order tohighlight the power dynamics in land relations; and, finally, it argues foran alternative norm in land reform discourse based on a responsibilisedstate.

While the book uses Malawi as a case study to demonstrate the localintricacies to a land question in a country, it also engages with the widerissues in land reform discourse in Africa and the South generally. Thisfocus reiterates the effect of colonial capitalism based as it was on a settlerplantation sector; the legacy of the developmental state; and the effects ofeconomic reform initiated by Bretton Woods Institutions. Theconsequence of these interventions has led to a majority of land deprivedpopulation in the global South with little or no access to arable land tosupport dignified living.

The book coincides with the political and media attention to landrelations as a result of what has been called ‘land grabbing’.49 This refers

44 Toulmin & Quan (n 1 above).45 McAuslan (n 36 above).46 Manji (n 4 above).47 Peters (n 6 above) 270. 48 As above.49 L Cotula et al Land grab or development opportunity (2009); and J von Braun &

R Meinsen-Dick ‘“Land Grabbing” by foreign investors in developing countries –Risks and opportunities’ IFPRI Policy Brief (2009).

12 Chapter 1

to an on-going phenomenon whereby rich countries and corporations arebuying or leasing millions of hectares of arable land in weak economies inthe global South in an effort to secure their long-term food security. Landgrabbing presents an added challenge to the plight of the land deprived andhas the potential of exacerbating impoverishment in the global South. I donot embark on a detailed analysis of ‘land grabbing’ in this book. However,the emergence of this phenomenon requires an inevitable reassessment ofthe land question in Malawi and other land questions in the global Southgenerally.

Indeed, the ‘reality’ of land relations in Malawi is that it is a bleaksocio-economic picture: Malawi occupies an area of 118 324 squarekilometres of land and water. Land accounts for 94 080 square kilometres.Of this total land mass, 53 070 square kilometres or some 5.3 millionhectares is deemed suitable for cultivation.50 This represents about 22 percent of the total land size of the country. As already noted, in thePopulation and Housing Census of 2008,51 the country’s humanpopulation is estimated at 13.1 million; the regional proportion being 5.9million in southern Malawi (46 per cent of the national total), 5.5 millionin central Malawi (42 per cent), and 1.7 million in northern Malawi (12 percent). Between 1998 and 2008, the country’s population grew by as muchas 32 per cent, representing an annual intercensal growth of 2,8 per cent.With the exception of Rwanda and Burundi, the country has a very highpopulation density in sub-Saharan Africa which currently stands at 139people per square kilometre; the regional variations in the country being185 people per square kilometre in southern Malawi, 154 people per squarekilometre in central Malawi, and 63 people per square kilometre innorthern Malawi. For a regional picture, while Malawi’s nationalpopulation density was 105 people per square kilometre in 1998, Zambia’snational population density in 2000 was only 13 people per squarekilometre.52 Since Malawi is a heavily agro-based economy, the incidenceof high population growth and high population density puts a lot ofpressure on arable land.

The most recent estimates53 indicate that up to 85 per cent of theMalawian population is employed in the agricultural sector; mostly assubsistence, tenant workers. Agriculture contributes over 90 per cent to thecountry’s export earnings; which translates to about 39 per cent of the

50 Government of Malawi Report of the Presidential Commission of Inquiry on Land PolicyReform: Volume 1 (1999) 13.

51 National Statistical Office (n 26 above).52 D Potts ‘Rural mobility as a response to land shortages: The case of Malawi’ (2006) 12

Population, Space and Place 291.53 B Chinsinga ‘Resurrecting the vestiges of a developmental state in Malawi? Reflections

and lessons from the 2005/2006 Fertiliser Subsidy Programme’ Paper presented at the2007 Guy Mhone Memorial Conference on Development: Public Sector Reforms inAfrica: Retrospect and Prospect, 22-24 August 2007, Zomba, Malawi (on file with theauthor).

Introduction 13

country’s Gross Domestic Product (GDP).54 The main agriculturalexports are tobacco, tea and sugar. The agricultural sector bears a heavyburden in the country’s economy. This follows from the devastating effectsstructural adjustment programmes, with their insistence on free trade, havehad on the manufacturing sector throughout the 1980s. For instance, in2007, the manufacturing sector contributed only 11 per cent to thecountry’s GDP. This has been a result of either total collapse of someindustries or reallocation of these industries to neighbouring countrieswithin southern Africa.55

Scholars have argued that the extent to which agriculturaldevelopment can have greater impact on the reduction ofimpoverishment56 depends on the availability of arable land.57 However,in the case of Malawi, impoverishment will remain a challenge as long asthe land question is unresolved. In 1968, the national average forlandholding was estimated at 1.53 hectares. In 1998, the ‘ultra poor’58 heldless than 0.5 hectares per household and produced 48.5 kilogrammes ofmaize per year. The non-poor held 1.1 hectares per household, producing115.8 kilogrammes of maize per year.59 As already noted, by the 2000s, thenational average per capita of cultivated land area was set at 0.22 hectares;with the ‘ultra poor’ holding 0.16 hectare per capita and the non-poorholding 0.28 hectares.60 Land distribution is different across the threeadministrative regions of the country. In southern Malawi, the averageland holding per capita is estimated at 0.178 hectares. In central andnorthern Malawi it is 0.257 hectares and 0.256 hectares respectively.

Beyond landholding, impoverishment is also severe in the country. In2007, Malawi’s National Statistical Office produced a report of a WelfareMonitoring Survey conducted in 2006.61 The Survey shows that theoverall proportion of the incidence of impoverishment at the national levelstood at 40 per cent; down from 50 per cent in 2005. The proportion of the‘ultra poor’ was 15 per cent; down from 21 per cent in 2005. At the level ofthe country’s administrative regions, rural southern Malawi was the mostimpoverished at 51 per cent, followed by rural northern Malawi at 46 percent, and rural central Malawi at 36 per cent. The proportion of the ‘ultrapoor’ was 22 per cent in rural southern Malawi, 18 per cent in rural

54 For a robust critique of GDP as a measurement of ‘social welfare’, see: JCJM van denBergh ‘Abolishing GDP’ (2007) Tinbergen Institute Discussion Paper, TI 2007-019/3available at http://www.tinbergen.nl/discussionpapers/07019.pdf (accessed22 October 2009).

55 Chinsinga (n 53 above).56 U Baxi Law and poverty: Critical essays (1988) where the author advocates the use of

‘impoverishment’ instead of ‘poverty’ as a stop to ‘yielding’ to ‘claims ofhomogenisation’; and U Baxi ‘Global development and impoverishment’ in P Cane &M Tushnet (eds) The Oxford handbook of legal studies (2003) 455.

57 Moyo (n 5 above).58 National Statistical Office (n 26 above).59 National Statistical Office Statistical yearbook, 2002 (2002) in Chirwa (n 27 above).60 Chirwa (n 27 above).

14 Chapter 1

northern Malawi, and 11 per cent in rural central Malawi. In terms of theurban/rural divide at the national level: there was a proportion of 11 percent ‘urban poor’, down from 24 per cent in 2005; 44 per cent of ‘ruralpoor’, down from 53 per cent in 2005; 2 per cent of urban ‘ultra poor’,down from 8 per cent in 2005; and 17 per cent of rural ‘ultra poor’, downfrom 23 per cent. Malawi’s socio-economic picture that I have presentedhere reveals a weak economy.

In light of the foregoing dour socio-economic profile of the country, Iexamine land reform in Malawi and assess the extent to which the reformenhances or undermines the resolution of the land question. The questionthat arises, however, is this: What are the broad contextual parameters thatunderlie land reform in the country? Put another way, what is thedominant conceptual narrative driving land reform in the country? I lookat the conception of market as value and land reform modelling below.

3 Market as value and land reform modelling

I reiterate that, like in most weak economies in the global South, market-based land reform dominates the initiatives to resolve the land question inMalawi. This is the case because the ‘new wave’ of land reform emerges inthe context of discontent with state-led land reform. The critics of state-ledland reform have raised a number of points: First, they have argued thatthe reforms were ‘slow’ due to state bureaucracy. Second, the reforms ledto the distortion of land markets through prohibition of land rentals or salesof land earmarked for expropriation. The prohibition, it has been argued,led to land acquisition by inefficient ‘producers’. This led to the emergenceof a corrupt, informal land market that encouraged speculativelandholding in the absence of a ‘progressive’ land taxation system. Third,the reforms have been criticised for their failure to provide for post-redistribution ‘support services’ to beneficiaries. Finally, by reason of the‘concept of sovereign guarantee’, the reforms have been criticised for beingvery expensive since the state paid the ‘landlords’ regardless of whether thebeneficiaries paid for the land.62 Deininger and Binswanger conclude:

61 National Statistical Office Welfare monitoring survey, 2006 available at http://www.nso.malawi.net/data_on_line/agriculture/wms_2007/WMS%202007%20REPORT.pdf (accessed 21 October 2009). Under the Survey, a household is considered‘poor’ if the total annual per capita expenditure is below a threshold or ‘poverty line’.The poverty line is a subsistence minimum expressed in local currency (the MalawiKwacha) determined by the Cost-of-Basic-Needs methodology. The methodologyincorporates individual food requirement and critical non-food consumption. Themethodology departs from a Purchasing Power Parity approach to measuring welfare.Hence, while structural impoverishment remains relatively unchanged, the figuressuggest an improvement in the livelihood of the population. See also NationalStatistical Office Statistical yearbook, 2010 (2010)

62 S Borras, Jr Pro-poor land reform: A critique (2007).

Introduction 15

Most land reforms have relied on expropriation and have been moresuccessful in creating bureaucratic behemoths and in colonizing frontiers thanin redistributing land from large to small farmers.63

Beyond the problems with state-led land reform, a body of literature hassurfaced that increasingly demonstrates that there is competition andconflict over land. This competition and conflict is accentuated by‘deepening rifts between and within kin-based, ethnic and regionalgroups’, and land expropriation by ‘local and non-local agents’.64 Below Idiscuss the idea of market as value; the power dimension of land reform;and land reform models, in turn.

3.1 Market as value

First, ‘development’ as ‘discourse’ has meant that ‘certain representations’have dominated its shape and reality while other ‘representations’ havebeen disqualified ‘and even made impossible’. Hence, development asdiscourse – development discourse – has meant that development becomesa ‘tale of domination’.65 In this light, development discourse hasemphasised the development of the market for economic growth. The roleof the state in the market has equally undergone constant invention and re-invention. The role of the state has been shaped as ‘developmental’ in the1970s; ‘minimalist’ from the mid to late 1980s and 1990s; and at the turnof the 21st Century CE ‘effective’.66 The ‘developmental’ state entailedthat development policy privileged the role of the state in ‘managing theeconomy and transforming traditional societies’.67 The ‘minimalist’ stategrew out of the economic failures that marked the end of the 1970s and ledto the rise of new economic policy framework in the 1980s whichadvocated a limited role of the state in the market under structuraladjustments programmes devised by the Bretton Woods Institutions.68 Inthis respect, the state was no longer important as the ‘logic of capital’would govern the market.69 In general terms, this logic of capital in themarket has supposedly been underpinned by neo-liberalism.

63 Deininger & Binswanger (n 36 above) 267.64 Peters (n 6 above).65 A Escobar Encountering development: The making and unmaking of the Third World (1995)

5.66 J Ngugi ‘Policing neo-liberal reforms: The rule of law as an enabling and restrictive

discourse’ (2005) 26 University of Pennsylvania Journal of International Economic Law 525.67 Trubek & Santos (n 39 above) 2.68 Ngugi (n 66 above); and D Trubek & A Santos (n 39 above).69 D Lal In praise of empires: Globalisation and order (2006); D Lal & H Myint The political

economy of poverty, equity and growth (1996), cited in A Hanieh ‘Praising empire:Neoliberalism under Pax Americana’ in C Mooers (ed) The new imperialists: Ideologies ofempire (2006); S Picciotto ‘Networks in international economic integration:Fragmented states and the dilemmas of neo-liberalism’ (1996-1997) 17 NorthwesternJournal of International Law and Business 1014; S Sassen ‘The participation of states andcitizens in global governance’ (2003) 10 Indiana Journal of Global Legal Studies 5; andJ Stiglitz Globalisation and its discontent (2002) have argued that the state is important in

16 Chapter 1

I argue that a distinction must be made between market as value whichis based on neo-liberalism as an economic framework, and market as valuewhich is based on neo-liberalism as ideology. The distinction is importantbecause the rhetoric underpinning the ‘minimalist’ state corresponds tomarket as value that is based on neo-liberalism as ideology. This is the casebecause the nature of macroeconomics in any country today suggests thatthe state is in fact far from minimalist in the strict neo-liberal sense.70 Inthis respect, I contend that what has engaged literature on politicaleconomy is market as value which is based on neo-liberalism as ideology.71

Ideology here is rooted in ‘meaning-making’ as a technique of domination.Marks, for example, has argued that ‘ideology’ must mean ‘the ways inwhich meaning helps to ground, support, and perpetuate relations ofdomination’.72 She asserts that this conception of ideology allows a‘critical or oppositional perspective’.73

As a way of unpacking neo-liberalism, the following observations arepertinent: The conception of neo-liberalism is rooted in the Mont PelerinSociety’s economic thought which is reflected in the work of Hayek;particularly his work that culminates in the catallaxy thesis. The catallaxyhas been described as ‘a special kind of spontaneous order produced by themarket through people acting within the rules of the law of property, tortand contract’. On account of this avowed spontaneity, Hayek contendsthat the market is neither ‘a natural phenomenon’ nor ‘is it a result of acontrived government policy’, it is something arrived at through rules ofconduct. As the market is a ‘culture’ and not ‘reason’, Hayek concludesthat it is unreasonable to have it regulated by the state. The role of the stateis to secure the rule of law.74

Hayek’s call for rules of conduct – the law of property, tort andcontract – resonates with the Foucauldian governmentality thesis whichexpounds, in part, that government is the conduct of conduct. From thisFoucauldian perspective, the Hayekian catallaxy is part of the range ofmultiform tactics in the regulation of the relationship of persons and

69 ensuring that a regulatory framework is in place. The World Bank and theCommission for Africa have appropriated the argument: World Bank (n 1 above); andCommission for Africa Our common interest available at http://www.commissionforafrica.org/english/report/thereport/english/11-03-05_cr_report.pdf (accessed13 January 2014) (on file with the author).

70 RT Roy et al ‘Introduction: Neo-liberalism as a shared mental model’ in RT Roy et al(eds) Neoliberalism: National and regional experiments with global ideas (2007) 3. Notableexceptions are Chile and Iraq where significant steps were made towards the creationof a ‘neo-liberal State’: D Harvey A brief history of neoliberalism (2007) 5-9, and 64-86.

71 NN Auerbach ‘The meanings of neoliberalism’ in Roy et al (n 70 above) 26-50, 26-27. 72 S Marks The riddle of all constitutions: International law, democracy, and the critique of

ideology (2000) 10-11. Marks identifies six conceptions of ‘ideology’, namely, ideologyas false consciousness; ideology as class consciousness; ideology as the world view;ideology as political tradition; ideology as social cement; and ideology as culture:Marks (in this note) 8-11.

73 Marks (n 72 above) 11.74 FA Hayek ‘The market order or catallaxy’ in FA Hayek Law, legislation and liberty:

Volume 2 – The mirage of social justice (1976) 107 and Harvey (n 70 above) 19-22.

Introduction 17

things. Hence, the Hayekian catallaxy or market as value are critical tacticsin the regulation of production in a market-based economy. Finally, if thenotion of neo-liberalism is grounded in the catallaxy thesis, then in recenttimes, market as value has since been ‘concretised’ under what has beentermed the ‘Washington Consensus’.75

The proponents of the Washington Consensus identified three ‘bigideas’ in its original conception: ‘a market economy, openness to theworld, and macroeconomic discipline’.76 Williamson articulated a set often economic principles as critical in the development of a viable marketunder the Consensus: fiscal discipline; re-direction of public expendituretowards primary health care, primary education, income re-distributionand infrastructure development; tax reform; liberalisation of interest rates;competitive exchange rate; trade liberalisation; liberalisation of foreigndirect investment in-flows; privatisation of state owned enterprises;deregulation (through the abolition of barriers of entry and exit of goods);and the inevitability of a liberal (private) right to property.77

The traditional frame of neo-liberal ideology is driven by theconviction that ‘free markets and international economic integration [leadto] prosperity, liberal democracy and peace’.78 Hay has, however,acknowledged the difficulty to underpin neo-liberalism in definitionalterms, and has noted the primacy of the nexus of neo-liberalism asideology and market as value.79 It has been suggested that a viable optionin understanding neo-liberalism as ideology is to concentrate on its usageas ‘one true meaning of the term is impossible’.80 Hence, it is arguable thatunder a political economy analysis, neo-liberalism as ideology must beunderstood as the platform that informs economic policies that haveshaped, and continue to shape, development discourse through privilegingmarket as value. Hence, market as value based on neo-liberalism as ideologyinforms the agenda of the Bretton Woods Institutions, particularly, theWorld Bank and the IMF. This neoliberal, ideological characteristic of the

75 Auerbach (n 71 above) 27.76 N Serra et al ‘Introduction: From the Washington Consensus towards a new global

governance’ in N Serra & J Stiglitz (eds) The Washington Consensus reconsidered: Towardsa new global governance (2008) 3.

77 J Williamson ‘What Washington means by policy reform’ November 1989, cited inNgugi (n 66 above); and also R Gordon & J Sylvester ‘Deconstructing development’(2004) 22 Wisconsin International Law Journal 1. There are varied meanings that havebeen attached to ‘Washington Consensus’ which are not the brainchild of JohnWilliamson: The first is the ‘bipolar doctrine’ of the Bretton Woods Institutions whichadvocated a fixed or floated exchange rate as opposed to Williamson’s competitiveexchange rates. The second – again a Bretton Woods institutions’ innovation – calledfor liberalisation of capital accounts as opposed to liberalisation to capital flows toforeign direct investment. Third, the Consensus has been used as a synonym of neo-liberalism or market fundamentalism: J Williamson ‘A short history of theWashington Consensus’ in Serra & Stiglitz (n 76 above) 14.

78 Gordon & Sylvester (n 77 above) 44.79 C Hay ‘The genealogy of neo-liberalism’ in Roy (n 70 above) 51-70, 51-55. 80 Auerbach (n 71 above) 28.

18 Chapter 1

market is often the basis of conditionality for loans and grants from the twoinstitutions.

The idea of market as value which is based on neo-liberalism asideology suggests that it is aspirational. This is the case, as it has beenobserved earlier, because statist economic frameworks have never beenstrictly neo-liberal.81 It is suggested that it is more apt to refer to ‘regulatedmarketisation’ in the context of a statist economic framework.82 Thedescription ‘regulated marketisation’ is more precise because it isincreasingly acknowledged under development discourse that stateintervention may be justified in the face of market failure. Under the‘emerging paradigm’ of regulated marketisation, the focus is on‘appropriate regulation’.83 The state is a ‘regulator’ under market-basedeconomic reform in a country. Hence, while development discourse hasbeen marked by shifts in the role of the state in the economy, the primacyof the market has been pervasive and the role of the state has beentransformed to varying degrees. If under structural adjustmentprogrammes the role of the state was supposedly decentred, it is alsosuggested that it has since been re-centred under the WashingtonConsensus and regulated marketisation.84

Finally, a discussion of market as a value whose ‘goodness’ (or‘badness’) is embedded in the notion of neo-liberalism as ideology seeks toshow that the market is not simply about ‘truth’ or ‘positive description’; itis about ‘normative prescription’.85 In land reform discourse, therelegation of the state into a passive role under a supposedly ‘new’ neo-liberal order is, in my view, part of a process of responsibilisation wherebythe land deprived are constantly shaped as a source of labour or inchoate‘producers’.86

81 Cf Hayek (n 74 above); G Kendall ‘From liberalism to neo-liberalism’ Paper presentedto the Social Change in the 21st Century Conference, 21 November 2003, available athttp://eprints.qut.edu.au/archive/00000134/01/Gavin_Kendall.pdf (accessed14 January 2015) (on file with the author); and Harvey (n 70 above).

82 The term ‘regulated marketisation’ has been used in the context of communication:Y Zhao ‘From commercialisation to conglomeration: The transformation of theChinese press within the orbit of the party state’ (2000) 50 Journal of Communication 3.

83 Trubek & Santos (n 39 above) 6-7. 84 Serra (n 76 above).85 I discuss ‘responsibilisation’ below and in Chapter 2. DK Gondwe Political economy,

ideology and the impact of economics on the Third World (1992) 31-35. 86 The notion of an ‘inchoate producer’ emerges under the land distribution model based

on the willing seller/willing buyer approach in so far the model leaves the new, post-distribution owners vulnerable in a land market. The vulnerability arises because thereare often weak or non-existent post-distribution support mechanisms for the erstwhileland deprived. In this way, inchoate producers are small-scale, auxiliary producersminimally contributing towards national food security.

Introduction 19

3.2 The power dimension of land reform

Beyond the conception of market as value, land reform must recognise thepower dimension of land and the implication of the control of that powerfor land reform. Land reform that is oblivious to the power dimensionsamongst the various constituencies in a country will result in virtuous andimpractical policies, plans and programmes for that country.87 A politicaleconomy analysis is critical in putting land reform in a proper context. Inthis respect, land reform must clarify who the main beneficiaries are; whothe losers are; the suitable approaches for ‘changing patterns of landownership’; the strategies that are in place to support the livelihood of newland owners etc.88 The nature of the responses to these fundamentalqueries to land reform will determine the extent to which the reform willameliorate critical land impoverishment and, ultimately, structuralimpoverishment and inequality in a country.89

By virtue of the power dimension, the quest for clarity in respect of thedirection of land reform is disordered because there are possibly competingsocial, economic and political perspectives to the reform.90 Theperspectives are not mutually exclusive. They are intertwined and serve anational development objective with slightly different ‘pressure points’:What may be conceived as a social perspective is epitomised by the ‘newdonor consensus’ with its focus on ‘livelihoods’ and the reform of the‘customary’ space. The role of the state here is facilitative.91 Second, aneconomic perspective emphasises the growth of a ‘bimodal agrarianpolicy’ where large scale agriculture operates in parallel to a developedsmall scale agriculture sector with the former catering for an exportagricultural commodity market and the latter satisfying homeconsumption. The goal here requires a state intervention that ‘sees valuein partial “delinking” from the global market’. However, the nature of thecurrent global geopolitics entails that this particular aim faces widespreadopposition.92 Finally, what may constitute a political perspective operatesat the micro and macro levels: the former is a means to ‘dissolve non-capitalist relations of productions or excessively concentrated powerstructures’ at the national level. The latter serves as a means of obliterating‘the political power of large agrarian capital’ and its links with

87 Okoth-Ogendo (n 32 above). 88 L Ntsebeza & R Hall ‘Introduction’ in L Ntsebeza & R Hall (eds) The land question in

South Africa: The challenge of transformation and redistribution (2007) 2.89 Hall & Ntsebeza (above) 1-20. 90 Moyo (n 5 and 13 above).91 Moyo (n 13 above) 5; Toulmin & Quan (n 1 above); and World Bank (n 1 above).92 Moyo (n 36 above) 6. To a considerable extent, China has ‘gotten away’ with this

agenda: K Griffin et al ‘Poverty and the distribution of land’ (2002) 2 Journal ofAgrarian Change 279.

20 Chapter 1

(international) capital.93 Suffice it to say that if anything the ultimate goalsof the three perspectives are not narrowly compartmentalised; they areintertwined.

The extent to which a society ‘allocates’ a power to a member over a‘subject matter’ will determine the nature of ‘ownership’ of that ‘subjectmatter’. Under market-based land reform models, Borras, in hisassessment of land reform discourse, has concluded that the firstpreference is actually for share tenancy reform. He has observed that underthe share tenancy reform, the tenancy contracts apparently give the landdeprived a ‘footing’ and ‘promise’ for ‘eventual land ownership’ and‘vertical mobility’ on the ‘agricultural ladder’.94 Hence, a vibrant landrental market is touted as the primary solution to lack of access to land.95

However, market-based land reform models are more prevalent thanshare tenancy reform. This is the case because the models are meant toserve as a departure from conventional land policies that did not favour theland deprived.96 Under these models, a key goal is the incorporation of theland deprived themselves in the provision of access to land.97 However, ithas been acknowledged that ‘the cooperation of the landlords is the mostimportant factor for any successful implementation’ of these land reformmodels.98 In practice, these models are said to operate in a negotiated,market context: the land owners – the landlords – ‘volunteer’ to sell theirland following an explicit demand by the land deprived to buy. Therhetoric goes that market-based land reform has a demand-drivenapproach and guarantees a win-win scenario.99

While realpolitik may partly explain the power dimension of landreform, the real battlefield, in my view, lies in the formulation of the‘norms’ of land reform as a discourse. Drawing on the discussion of theright to property in Chapter 3, the dominance of the liberal interpretationof the right to property and the calls for the reform of the ‘customary’ spacealso leads to a focus on the emergence of a nascent, imperial, global state.This state has a ‘decentralised face’ and is ‘underpinned’ by ‘sub-nationalauthorities and spaces’ in favour of ‘a transnational capitalist class’.100 Inland reform, the shift to market-based land reform models on the basis of

93 Moyo (n 36 above). This agenda is perhaps akin to the so-called fast track land reformprogramme underway in Zimbabwe since 2000: Moyo & Yeros ‘Land occupations andland reform in Zimbabwe: Towards the National Democratic Revolution’ in Moyo &Yeros (n 5 above) 165.

94 Borras (n 62 above) 54.95 As above.96 Borras (n 62 above) 53.97 World Bank (n 1 above).98 Borras (n 62 above) 53-54.99 Borras (n 62 above) 54-55. 100 BS Chimni ‘International institutions today: An imperial global state in the making’

(2004) 15 European Journal of International Law 1; OC Okafor ‘Poverty, agency andresistance in the future of international law: An African perspective’ (2006) 27 ThirdWorld Quarterly 799; and L Sklair Globalisation: Capitalism and its alternatives (2002).

Introduction 21

the critique of state-led land reform must also be understood in the contextof the changing state. Hence, the nature of land reform in postcolonialeconomies such as Malawi is shaped by this asymmetry in global inter-state relations.101 On this note, the next section covers market-based landreform models at the centre of land reform today.

3.3 Market-based land reform models

The general principle that emerges from the foregoing discussion is thatmarket as value that is based on neo-liberalism as ideology dominatesdevelopment discourse. This domination has inevitably permeated landreform discourse.102 Land reform models being touted in the ‘South’ areinvariably market-based and emerge in the context of the dominance of theefficiency argument.103

It has already been noted that land reform must necessarily entail a nettransfer of land ownership. A focus on net transfer means that land reformmust address concentration of land in a country under an index of theavailability of arable land per capita. If arable land per capita isconcentrated in a few hands, the net transfer must mean that land transferswill move from the land rich to the land deprived.104 The three market-based land reform models will now be discussed in turn.

3.3.1 Land redistribution

Brink and others have argued that land redistribution is all about fairnessand equity.105 They argue that this entails historicising the land questionin a country. If land question arises out of a historical ‘injustice’, landredistribution as a model of land reform may become about ‘a wrong to be

101 Borras; Deininger & Binswanger; and McAuslan (all in n 36 above); Moyo (n 12above); H Shams ‘Law in the context of “globalisation”: A framework of analysis’(2001) 35 International Lawyer 1589; C Rose ‘The “new” law and developmentmovement in post–Cold War era: A Vietnam case study’ (1998) 32 Law and SocietyReview 93. See also D Trubek ‘Law and development: Then and now’ Paper presentedto the American Society of International Law, Washington DC, 1996 cited in Rose (inthis note); M Chibundu ‘Law in development: On tapping, gourding and serving palm-wine’ (1997) 29 Case Western Reserve Journal of International Law 167; Hanieh (n 69above); Picciotto (n 69 above); S Picciotto ‘Liberalisation and democratisation: Theform and the hearth in the era of cosmopolitan post-industrial capitalism’ (2000) 63Law and Contemporary Problems 157; S Picciotto ‘The WTO’s appellate body: Legalformalism as a legitimation of global governance’ (2005) 18 Governance 477; Roy (n 70above); and Sklair (n 100 above).

102 Ngugi (n 66 above); and Roy (n 70 above).103 H de Soto The mystery of capital: Why capital triumphs in the West and fails elsewhere (2001)

27-30, 36-61, 160-218. For a critical discussion: Griffin et al (n 30 above) 293; andNyamu-Musembi (n 86 above).

104 Griffin et al (n 30 above) 283-284. 105 R van den Brink et al Consensus, confusion, and controversy: Selected land reform issues in

sub-Saharan Africa (2006) 18.

22 Chapter 1

righted, no matter what’.106 Hence, land redistribution is premised on thesimple fact that in countries with extremely skewed land relations, thedistribution of the right to property in land must move from the erstwhileland owners to the land deprived. However, Brink and others observe thatthere is a ‘reluctance’ to proceed with land redistribution. They state:

Unfortunately, it is exactly this link to feelings of injustice which makes landredistribution in many countries such an urgent development issue, on theone hand, and too political, sensitive, and controversial to be dealt with as apart of the economic development and poverty reduction strategies bygovernments and development partners alike, on the other. It does not helpthat even among those who are essentially in favour of land redistribution,there does not exist consensus on the ‘how to do it’ part. This confusespolicymakers and the development community at large, providing anotherexcuse for inaction, and avoiding the heart of the matter – the actualredistribution of property rights in land.107

These scholars note that the impetus for land redistribution must stemfrom the desire to achieve ‘conflict prevention, equity, economic growth,jobs, and poverty reduction’ in a country.108 The detractors of landredistribution as a land reform model reiterate a number of the argumentsagainst the so-called ‘customary’ land tenure and state-led land reform.These detractors point to the efficiency argument, that is, large farms areeconomically more efficient than small farms.109

The market-based land redistribution model is based on a willingseller/willing buyer approach. This approach requires that the landdeprived as the beneficiaries must self-select and, through the agency of thestate, enter into negotiation with a land owner for the purchase of land(which the land owner has offered to the state). If a land owner accepts theprice offered by the land deprived (through the state) the process of transferof title in the land may ensue. The implementation of the model in SouthAfrica, for example, has shown that offers of land are simply notforthcoming from land owners. Where land is offered, the purchase priceis often consistent with the market valuation or even inflated; oftenunproductive land is placed on the market; and there is insufficient fundingavailable to the land deprived to sustain viable farming and a dignifiedlivelihood.110 Indeed, commentators have concluded that the model‘makes for a seller’s market’.111

106 Brink et al (n 105 above); Moyo (n 36 above) 21-23. 107 Brink et al (n 105 above) 18.108 As above.109 Brink et al (n 105 above) 18-21. 110 F Barros et al (eds) The negative impact of the World Bank market based land reform (2003)

cited in Moyo & Yeros (n 5 above) 54; R Hall ‘Transforming rural South Africa?Taking stock of land reform’ in Ntsebeza & Hall (n 88 above) 87-106.

111 Moyo & Yeros (n 21 above).

Introduction 23

Further, Borras has argued that land redistribution, whether market-based or not, must lead to ‘effective control’ of the ‘means of production’; itmust lead to ‘purposive change’ where the land deprived have a ‘netincrease’ of their power to control land and a corresponding net decreaseof the power of the erstwhile land owners over the same land; it mustinclude the ‘right to alienate’.112 In other words, effective control means‘the right of access, withdrawal, management, exclusion, andalienation’.113 When looked at in terms of an effective-control prism, themarket-based land redistribution model becomes problematic. He has said:

[T]here are cases where a person is the full owner of a parcel of land but hasno power to fully and effectively exercise ownership rights (the entire range,from the right of access to the right to alienate). This is because the degree ofpower of an elite to exercise effective control over the same land is muchhigher than that of the formal (nominal) owner; in this case, the elite’s powermay cover almost the entire range of rights, except the formal right to alienate.However, for the elite, the right to alienate is superfluous because the formal-nominal owner’s right to alienate has been effectively clipped through legal orillegal, violent and non-violent means. Indeed, the elite has no need or wantto dispose of the owner’s control over the land, at least not in the mediumterm, and so the right to alienate has no significant value. To the landed elitewhat is important is the effective control over the land, that is, all the rightsexcept the right to alienate, which also means effective control over non-economic benefits, such as the captive seasonal electoral votes of the people ofthe land.114

What is clear from Borras’ point is that a process of formalised landtransfers is not an end in itself; it can easily amount to tokenism and maskthe entrenched role of an erstwhile land owner responsibilised as aproducer and that of a land deprived constituency responsibilised as asource of labour and as inchoate producers.

3.3.2 Land restitution

The land restitution model has been championed largely in South Africa.The model is entrenched under the Constitution of South Africa and ismeant to address land dispossession that occurred in apartheid SouthAfrica.115 Hence, land restitution as a market-based model is aformulation that is peculiar to the political history of South Africa. Underthe Natives Land Act 27 of 1913 and indeed the Group Areas Act 41 of1950, non-whites in South Africa were forcibly removed from ‘their’ land

112 Borras (n 62 above) 22 (emphasis in the original).113 Borras (n 62 above) 25.114 Borras (n 62 above) 25-26.115 Section 25(7) of the Constitution of the Republic of South Africa, 1996.

24 Chapter 1

to specially designated areas based on their profiling as black, coloured orIndian.116

With the dispossessions under the Native Land Act being the cut-offpoint, dispossessions under colonial conquest are excluded. Thebeneficiaries under this model have included blacks who were ‘banished’to ‘so-called homelands’, evictees from urban areas, and former labourtenants who previously earned their living on commercial farms.117 Themodel is regulated through ‘an expedited’ extrajudicial method whereclaimants negotiate with the (South African) Commission on Restitutionof Land Rights and the remedies include ‘restoration of land, provision ofalternative land, payment of compensation, alternative relief, priorityaccess to housing (sic), and land development programmes.’118 The modelhas suffered from ‘institutional fragmentation, unnecessary litigation anda lack of leadership’.119 In respect of the stated weaknesses, Hall notes:

Restitution has turned out to be a gradual and bureaucratically mediatedprocess of returning land to the dispossessed. It is widely considered to be asuccess story in South Africa, as most of the claims are now settled; however,much of this has been done via payment of cash settlements to urbanclaimants. Some of the most intractable, costly and potentially conflictualclaims in the rural areas are yet to be addressed. These raise fundamentalquestions about (i) how rights of claimants and current landowners will beaddressed; (ii) financing the acquisition of land; and (iii) appropriate modelsof agriculture for resource-poor claimants.120

Hall has misgivings with the land restitution model. Her misgivings stemfrom the privilege accorded to production under the model. She notes thatthe land restitution model, just as the land redistribution model, has beendetermined by the imperative to ‘minimise disruption to agriculturalproduction and political stability’.121 Again, the point may be made thatwith all the weaknesses highlighted under the model, the structure of landrelations before the implementation of the model remains entrenched. Asthat is the case, the relation of a land owner as the producer and the landdeprived as the source of labour or as an inchoate producer under the

116 Section 25(7) of the Constitution of South Africa; and B Cousins ‘Legislatingnegotiability: Tenure reform in post–apartheid South Africa’ in K Juul & C Lund (eds)Negotiating property in Africa (2002). Under South African racial profiling, a ‘coloured’referred to a person of ‘mixed race’: the Population Registration Act 30 of 1950 (ofSouth Africa) (repealed).

117 Hall (n 110 above).118 Cousins (n 116 above) 78; and Hall (n 110 above) 87-106, 92-95. Hall notes that most

restitution claims are settled through cash compensation. Where land has beenrestored, the new owners have not been able to realise the full potential of their land asthey have suffered from an absence of a ‘support regime’ for a sustainable livelihood.

119 A du Toit ‘The end of restitution: Getting real about land claims’ in B Cousins (ed) Atthe crossroads: Land and agrarian reform in South Africa into the 21st Century (2000) 75-91cited in Cousins (n 116 above).

120 Hall (n 110 above) 92.121 As above.

Introduction 25

process of hegemonic responsibilisation persists.122 Indeed, Hall has notedthat ‘[s]ettlement of claims is not, then, an end point of restitution, but onemoment in the longer and more complex task of restoring land andlivelihoods’.123 In relation to problems that arise due to lack of effectivecontrol of land as pointed out by Borras; in the South African context, ithas been noted as follows:

Where poor communities have lacked capital to enable them to continue withexisting operations on commercial farms, they have sometimes entered intojoint ventures with commercial partners able to provide finance expertise, oreven leased out their land to previous owner. These arrangements should beexpected to emerge where resource-poor people become owners ofcommercial farms in the absence of an agricultural support regime.124

What emerges here is that dignified livelihood, albeit as a ‘wider’ point, isas important as the ‘narrower’ point of access to land.

3.3.3 Tenure reform

There are two dimensions to the tenure reform model. The first relates tothe reform of ‘customary’ land tenure. The second relates to the initiativesto secure the ‘tenure’ of non-white South Africans living on commercialfarms in South Africa. The first scenario is pervasive in localities of landstruggles worldwide.125 Just like the land restitution model, the secondsetting is peculiar to South Africa.126

I argue in Chapter 3, in relation to the ‘customary’ space, that theaspects of the tenure reform model relating to ‘customary’ land tenure are,in my view, normatively the weakest. This dimension of the tenure reformmodel emphasises the reform of ‘customary’ land tenure. This echoes thecall for reform of ‘customary’ land tenure that came about under theLugard thesis and the Swynnerton Plan; at least in English common lawAfrica. Invariably, a legal regime is developed to transform the supposedlycommunitarian ethos of ‘customary’ land tenure into a statutory regime ofthe liberal right to property that privileges the individual. Hence, strategiesare put in place to ‘codify’ the ‘local systems’ of landholding; ‘register’ thelocal rights’, conduct cadastral surveys, and map land uses; and to ‘reform’rules and procedures for land administration.127

It has been acknowledged in the context of the tenure reform modelthat three difficulties arise: First, regulation of the ‘customary’ space,premised as it is on the ‘controversy’ of the institution of the chief is a

122 Cousins (n 116 above).123 Hall (n 110 above) 94.124 As above.125 Moyo & P Yeros (n 36 above) 21.126 Cousins (n 116 above); and Hall (n 110).127 Cousins (n 116 above) 71-72.

26 Chapter 1

‘profoundly political exercise’. Hence, the so-called codification andregistration of rights in land cannot be as ‘open’ and ‘fair’. Second, themultiplicity of interests in the ‘customary’ space makes it difficult toresolve multiple claims of occupancy or ownership. The third point (and ithas been made in the context of Francophone West Africa) is that themetropolis has been reluctant to devolve ‘real’ authority to thecountryside.128

The second trajectory of the tenure reform model is peculiar to SouthAfrica. Here, the model is rights-based and the South African Constitutionguarantees the security of tenure or ‘comparable redress’ to persons whosetenure is insecure as a result of racially discriminatory laws underapartheid South Africa.129 The legal regime here is meant to cater forformer labour tenants, residents of former black homelands (the so-calledBantustans), and other groups of people who hold land ‘communally’.130

These constituencies account for an estimated 19 million people.131

The regime is also complemented by the Land Reform (LabourTenants) Act 3 of 1996 and the Extension of Security of Tenure Act 62 of1997. The legislation aims at regulating ‘tenure relations between ownersand occupiers of farms and determine when and how occupiers may beevicted so as to prevent people from being arbitrarily evicted and left withno alternative place to go’.132 Despite the enabling legislation being inplace, the model has suffered from institutional capacity constraints tosupport would-be beneficiaries. Evictions are widespread; there is a lack ofprecision in terms of the nature of the rights, the holders of the rights, andthe space which those rights affect; there is also discontent regarding‘traditional councils’ set up under statute133 where the critics argue thatthey ‘reinforce the powers of unelected traditional authorities andcompromises democracy in rural areas’.134 Finally, Hall sums up therecurring problem of responsibilisation of land owners and the landdeprived. She states that the ‘extension’ of land titles will ‘aggravate ratherthan reduce disparities’ between the commercial farming space (owned byland owners) and the so-called ‘communal areas’ (where the land deprivedreside).135

128 Cousins (n 116 above) 72.129 Section 25(6) of the Constitution of South Africa.130 Hall (n 110 above) 95.131 As above.132 Hall (n 110 above) 95.133 The Traditional Leadership and Governance Framework Act 41 of 2003 (of South

Africa).134 Hall (n 110 above) 97.135 As above.

Introduction 27

3.4 Reflection on market–based land reform modelling

Three main issues of sustainability arise from the discussion so far;namely, the lack of cooperation of land owners; the prevalence of weakpost-redistribution support services; and the atrophy in programmefinancing. I discuss the issues in turn:

3.4.1 Cooperation of land owners

The issue of the lack of cooperation of land owners is most pronouncedunder the land redistribution model. It has been acknowledged that landowners are a ‘political powerhouse’ in most sub–Saharan Africancountries due to historical processes of ‘coercion’ and ‘distortion’.136

Hence, a land redistribution model based on the willing seller/willingbuyer approach is at the mercy of the landowners. To the extent that it issupposedly ‘demand-driven’, it is not different from general conveyancingsince the transaction price under the model is invariably set by the landowner. This goes against the view that market-based land reform models,unlike state-led land reform, guarantee a win-win situation.

It has been suggested that the state may use its power of expropriationto rein in recalcitrant land owners.137 However, even in countries such asSouth Africa where expropriation is possible under constitutionalframeworks, the compensation package has, in practice, been driven bymarket valuation of land.138 Further, the economic downside ofexpropriation through the cost of litigation and dwindling investorconfidence renders it a less likely option for most countries pursuing landreform in sub-Saharan Africa.139 Hence, the constraints that arise incertain cases are political rather than legal. This invariably renders landreform an expensive exercise and negatively affects its sustainability in thelonger term.140

3.4.2 Post–redistribution support services

Market-based land reform models proceed on the assumption that cashgrants that are given to the land deprived will adequately cater for thedeveloping of their newly acquired farm land, including the hiring ofexpertise for farm extension services.141 In South Africa, Hall observesthat the state acknowledged its capacity constraints to provide human and

136 Brink et al (n 105 above) 41.137 Hall (n 110 above) 99; and Brink et al (n 105 above) 40.138 Section 25(2)-(5) of the Constitution of South Africa; and L Ntsebeza ‘Land

redistribution in South Africa: The property clause revisited’ in Ntsebeza & Hall (n 88above) 107.

139 Brink et al (n 105 above) 40-41. 140 Hall (n 110 above) 99-100. 141 Borras (n 62 above) 54.

28 Chapter 1

material resources for adequate agricultural support to the beneficiaries ofthe land reform.142 The situation points to the fact that beneficiaries canonly be left to their own machinations, if they were given enoughcapability to withstand the vicissitudes of the market. Anything to thecontrary leaves the beneficiaries prone to distress sales of land and a returnto their designation as the land deprived.

3.4.3 Programme financing

The issue of programme financing follows from the issue of lack of supportservices that has been pointed out in the preceding section. Theassumption under programme financing is that market-based land reformmodels factor in a cash grant for beneficiaries of the reform that caters forthe purchase of land, and post-transfer development projects.143 Furtherassumptions are that the ‘flexibility’ of the models ensures that there is nohand-out mentality amongst the beneficiaries; there is no basis foruniversal subsidies since grants are ‘superior’ to subsidies; grants can betargeted and eliminate ‘distortive effects’ and in the process keep the costof land low; and, finally, since the state is not involved, the transactionscosts are low following the elimination of ‘expensive governmentbureaucracies’.144

However, implementation of the models has shown that the critique ofstate-led land reform is misplaced in respect of programme financing ofmarket-based land reform. Implementation of market-based land reformmodels is extremely expensive. Some scholars have argued that the ironyis that for the implementation to attain a likelihood of success, it must reston sound fiscal resources of the implementing state.145 This is problematicbecause most countries grappling with unresolved land questions haveweak economies and often rely on grants from the Bretton WoodsInstitutions, particularly the World Bank, for the implementation of theirland reform projects. Immediately, this raises issues of legitimacy,accountability and independence in tackling the country-specific landquestion. Even in relatively stronger economies that are engaged with theresolution of the land question such as South Africa, adequacy of funds tosupport land reform is a serious constraint of the implementation processbecause, more often than not, the projected required funding ishumongous.146 Hence, far from the state taking a passive role, the state isrequired to provide financial guarantees for the success of the reform.

142 Hall (n 110 above) 100.143 Borras (n 62 above) 56.144 Borras (n 62 above) 57.145 Brink et al (n 105 above) 41.146 Hall (n 110 above) 101-102.

Introduction 29

4 On responsibilisation

In this book, I propose a framework for analysis based on the conceptionof responsibilisation. The discussion of responsibilisation starts withShamir. He has argued in the context of corporate social responsibility that‘responsibilisation conceptualised as the ‘expectation’ and ‘assumption’ of‘reflexive, moral capacities of various social actors’ is the link that connectsthe ideals of governance and actual practices in a political economy.147

The reference to the concept of ‘governance’ as a vehicle forresponsibilisation is important. Governance, in this context, entails a‘mode’ where the economic and social domains merge under what Shamirhas called the ‘market of authorities’. Under this ‘market’, centralgovernments evolve from ‘regulators’ with a top-down approach to‘government’ to ‘facilitators’ who are aware of other ‘nodes’ or ‘sources’ ofauthority.148 Governmental authority under governance does notnecessarily need the coercive authority of the state. Under a governanceframework, ‘guidelines’, ‘principles’, ‘codes of conduct’ and ‘standards’have all been ‘produced, distributed, exchanged, negotiated and ultimatelyconsumed’ by a host of state and inter–state agencies, commercialenterprises and non-profit organisations that comprise the ‘market ofauthorities’.149 Finally, governance as a ‘modality of power’ ‘relies onpredisposing social actors to assume responsibility for their actions’.150

This process of predisposition is the hallmark of responsibilisation.

Value underpins responsibilisation. Again, Shamir has argued thatresponsibilisation presupposes ‘one’s uncoerced application of certainvalues as a root motivation for action’.151 Indeed, in the context ofcorporate social responsibility, he has argued that responsibilisation relieson the ‘construction of moral agency’ to buttress the importance of theindividual as an entrepreneur.152 In the end, responsibilisation onlyrestructures the market of authorities by adding a value; it is through valuethat the convergence of the economic and the social is possible.153

There are two strands of responsibilisation that are submitted here forthe analysis of the land question in Malawi. The first strand is pervasive inthe academy. It refers to ‘processes’ at the behest of the state or a non–state‘dominator’ that construct the individual – the population – to serve orindeed behave in a particular way to fulfil a particular role in a political

147 R Shamir ‘The age of responsibilisation: On market-embedded morality’ (2008) 37Economy & Society 7.

148 As above.149 Shamir (n 147 above).150 As above.151 Shamir (n 147 above).152 As above.153 Shamir (n 147 above) 10.

30 Chapter 1

economy.154 I refer to this type of responsibilisation ‘hegemonicresponsibilisation’. By hegemonic responsibilisation, one may draw fromthe Gramscian notion of ‘hegemony’ where the ‘value’ of the ‘dominantclass’ is imposed on the ‘dominated’ to maintain a status quo.155 Thesecond strand of responsibilisation stems from the idea of governmentality;and indeed, the nature of Foucauldian ‘power’. Foucauldian ‘power’ is notannihilatory. Hence, the second strand of responsibilisation relates to thestrategies by the individual – the population – that shape and re-shape thenature of the exercise of authority by a state or non-state entity at the local,state level and ultimately the global level. These strategies also relate to theFoucauldian ‘counter-conduct’. This is what I call ‘people-generatedresponsibilisation’.156 Indeed, people-generated responsibilisation is basedon people sovereignty. The value underpinning people-generatedresponsibilisation is that the right to exercise state authority lies in thepeople as a repository of constituent power.157 I elaborate on the idea inChapter 2.

The conception of responsibilisation forms the framework for theanalysis of the interplay amongst the key constituencies that underlie theland question in Malawi; namely, the state, the Bretton WoodsInstitutions, the Achikumbe, and the land deprived.

5 On method

The research behind this book is largely based on qualitative methodologyand used a multi-method approach for data collection, management andanalysis.158 The data analysis largely involved an interpretive paradigm

154 J Clarke ‘New labour’s citizens: Activated, empowered, responsibilized, abandoned?’(2005) 25 Critical Social Policy 447; and T Parfitt ‘Are the Third World poor hominessacri? Biopolitics, sovereignty and development’ (2009) 34 Alternatives 41.

155 A Gramsci Selections from the prison notebooks of Antonio Gramsci trans Q Hoare & GNSmith (1971) 5.

156 See for comparison purposes T Basok & S Ilcan ‘In the name of human rights: Globalorganizations and participating citizens’ (2006) 10 Citizenship Studies 309; and OLöweinheim ‘The responsibility to responsibilize: Foreign offices and the issuing oftravel warnings’ (2007) 1 International Political Sociology 203. See also Parfitt (n 154above) on the ‘creative’ and ‘destructive’ possibilities of Foucauldian biopolitics.

157 R Jackson et al Sovereignty: The evolution of an idea (2007). The case is often made of thedichotomy between Foucauldian ‘governmentality’ and Gramscian ‘hegemony’.However, Springer notes that a neoliberal global order, the ‘situations’ and ‘processes’that underlie responsibilisation are neither bottom-up nor top-down, they arecircuitous: S Springer ‘Neoliberalism as discourse: Between Foucauldian politicaleconomy and Marxian poststructuralism’ (2012) 9 Critical Discourse Studies 133.

158 The work has involved both qualitative and quantitative data for a contextualbackground on Malawi. For example, information on population density in Malawi,statistics on land ownership, etc, is predominantly quantitative. Norman Denzin andYvonna Lincoln have suggested that the qualitative and quantitative researchdichotomy refers to research styles that are actually doing the same things differently:N Denzin & Y Lincoln ‘Introduction: Entering the field of qualitative research’ inN Denzin & Y Lincoln (eds) The landscape of qualitative research: Theories and issues(1999) 1, 8-11. See also T Murray Blending qualitative and quantitative research methods in

Introduction 31

that incorporates elements of critical discourse analysis.159 Theinterpretive paradigm is rooted in post-positivist, qualitative methodology.The paradigm proceeds on the basis that ‘reality’ is in constantconstruction through social interaction.160 In contrast, the positivist schoolassert that ‘reality’ evolves outside the influence of social actors. The post-positivist school falls into the realm of ‘constructivism’; the positivistschool belongs to ‘objectivism’.161 Hence, an interpretive paradigm allowsfor the exploration of ‘meaning’.162 In this context, the methodologycomplements the underlying critique of the book which is that in theanalysis of the land question in Malawi the focus must be on the‘situations’ and ‘processes’ underpinning the ‘reality’ of land reform in thecountry. Further, the interpretative paradigm resonates with the ‘theory’ ofthe book based as it is on the Foucauldian ‘idea’ of governmentality andthe ‘idea’ of responsibilisation.

There are two key assumptions here: First, a liberal legal order masksthe inequality in a society with its emphasis on an abstractionistconception of a ‘right’ and ‘property’, and a de-historicised and de-contextualised approach to analysis. Second, an analysis based on a landowner-land deprived dichotomy when looking at the land question masksother esoteric interests underway in the various agitations for theresolution of a land question. In view of these assumptions, the analysis ofthe land question in Malawi revolves around the interplay amongst the keyconstituencies. This means that the research on the land question inMalawi steers towards the analysis of how and why the ‘reality’ of landrelations has come to be and its consequences.163

Finally, I make the following observation regarding extrapolation inresearch. The issue here concerns the extent to which one can generalisefindings from qualitative research that has taken place within a limitedtime and space. The concern is pertinent where the findings from a sampleare meant to apply to a wider population.164 For purposes of this book, Icontend that to the extent that the focus has been on ‘situations’ and‘processes’, the extrapolation of the emerging trends is based on ‘theory’ asopposed to empirical findings.165 In this regard, the main research tools,namely, archival and library searches, interviews and focus group

158 theses and dissertations (2003); and N Denzin & Y Lincoln (eds) The Sage handbook ofqualitative research (2005).

159 On discourse and discourse analysis: N Fairclough Discourse and social change (1992);M Foucault ‘Incitement to discourse’ in A Jaworski & N Coupland (eds) The discourse(1999) 514; and D Haworth Discourse (2000).

160 J Grix The foundations of research (2004).161 As above.162 M Stroh ‘Qualitative interviewing’ in D Burton (ed) Research training for social scientists:

A handbook for postgraduate researchers (2000) 196. 163 Cf Okoth-Ogendo (n 32 above) 12-13. 164 D Silverman Doing qualitative research (2005).165 Silverman (n 164 above).

32 Chapter 1

discussions serve to generate a narrative as opposed to being an end inthemselves.

6 Final word

In sum, the book is a critical, genealogical analysis of the land question inMalawi. I note that land reform discourse is dominated by an ethos basedon market as value which, in turn, has cemented the ubiquity of auniversal, automatic transition from land reform to land law reform intackling a land question in a country. Using a Foucauldian-based theory ofgovernmentality and responsibilisation, I provide a reassessment of thenorms in land reform discourse and argue for the conception of a right toproperty in land as a social relation. The analysis here reveals the parochialinterests of global capital, local elites and even the land deprived thatunderpin a land question. The lack of synergy between law and policyunder land reform in Malawi leads to the consistent emergence of two‘beings’: First, a responsibilised citizen in the mould of the land deprivedwho constitutes a source of cheap, wage labour for the large estateagriculture sector; and second, a land owner as the efficient producer at thecentre of the large estate agriculture sector. In the end, I propose analternative norm in land reform discourse based on the responsibilisedstate.

Here is a brief map of the book: In general terms, under Chapters 2 and3, I discuss the ‘normative terrain’ that underpins this book. Chapters 4, 5and 6 contain the more ‘empirical’ trajectory of the book. Chapter 2outlines the ‘theory’ of the book. The theory is based on the ‘idea’ ofgovernmentality and a framework for analysis based on the ‘idea’ ofresponsibilisation. A governmentality approach demonstrates that theemphasis in land reform discourse on land law reform is misplacedbecause law is only one in a range of disciplining tactics which includespolicy frameworks, codes of conduct, standards, guidelines and proposalsfor reform. The nature of responsibilisation here is what I call hegemonicresponsibilisation. Hegemonic responsibilisation is configured as thevehicle that actualises governance in a political economy. Governanceitself is a convergence of a ‘market of authorities’ where the individual ispredisposed as a responsibilised citizen.166 In the context of a landquestion in a weak economy such as Malawi, a governmentality-responsibilisation analysis provides the basis to examine the propositionthat market-based land reform leads to a sustained emergence of the landowner as the ‘efficient’ producer and the land deprived as the cheaplabourer, and inchoate producer.

166 Shamir (n 147 above).

Introduction 33

In Chapter 3, I look at the following conception issues: the nature ofthe right to property in land and the nature of the ‘customary’ space. Ireiterate that the liberal conception of the right to property in land isdominant in land reform discourse. This has allowed a focus on theresponsibilisation of a homo economicus whose responsibilisation is crucialfor the sustenance of the market. Second, I examine the customary ‘space’.In that regard, I argue that the obsession with the reform of the customary‘space’ in land reform discourse is misplaced and it has been a majorcontributing factor in the irresolution of land questions in the global Southgenerally. I assert that the conception of the right to property as a socialrelation would allow for a social constructionist approach to property. Inturn, this approach accounts for history and context, and enables a focuson the ‘technologies of normalisation’ shaping and re-shaping a landquestion in a weak economy such as Malawi.

In Chapter 4 and 5, I delve into the specific law and policyinterventions that have been put in place in the undertaking to resolve theland question in Malawi. In Chapter 4, I discuss the extent to which theglobal-local macroeconomic linkage enhances or undermines theresolution of a land question in a country. The Chapter also covers theresponses that have emerged in Malawi in relation to the resolution of theland question. At the global level, I look at the World Bank’s Land Policyand poverty reduction strategies such as the Medium Term ExpenditureFacility (MTEF) and their implication for national macroeconomicstrategies that coalesce under the Malawi Growth and DevelopmentStrategy II. At the local, Malawi space, I focus on the National LandPolicy and to processes prior to its adoption by the state in 2002;particularly, the work of the Presidential Commission of Inquiry on LandPolicy Reform, and the three land utilisation studies that took placebetween 1995 and 1998. Following the adoption of the National LandPolicy, the Chapter also critiques the intervention of the Malawi LawCommission from 2003, and the launch, in 2009, of a national programme– the Greenbelt Initiative – which is championing big estate irrigationagriculture.

In Chapter 5, I discuss the interplay of the key constituencies inMalawi’s land reform; namely, the state, the Bretton Woods Institutions(especially the World Bank and the International Monetary Fund), thecoterie of commercial farmers – Achikumbe, and the land deprived. Theargument is that a triangulated examination of the key constituenciesreveals a multiverse of parochial interests. These parochial interests havemade the resolution of the land question in the country very burdensome.The dominance of the macroeconomic frameworks that are imposed onthe country from the Bretton Woods Institutions suggests that theseInstitutions ‘end’ or ‘foreclose’ the negotiation by the other constituenciestowards a possible resolution of the land question in the country.

34 Chapter 1

Finally, in Chapter 6, I propose an alternative ‘norm’ to land reform inMalawi based on the responsibilised state. I argue that the resolution of aland question should not necessarily depend on land as the solum. It mayhinge upon alternative macroeconomic intervention; for instance, the re-aligning of the backbone of an economy from one sector to another. Ilocate the responsibilised state within people-generated responsibilisationbased as it is on people sovereignty.

35

The resolution of a land question rests, to a large extent, upon clearlydefined parameters of the constitutive conception, theory and theframework for analysis.1 In the case of political economies such asMalawi, the resolution must necessarily be based on the conception,theory and the framework for analysis that incorporates history andcontext for an understanding of what ought to constitute the precise natureof the reform.

The need for clarity of the conception, theory and a framework foranalysis, and indeed the nature of the land question in Malawi, sets out thecrux of this and the subsequent Chapters. Chapter 3 deals with matters ofconception relating to the nature of a right; the nature of the right toproperty as a social relation (including the right to property as a legalrelation, and the right to land); the nature of the ‘customary’ space; and theproposal of a beneficial interest in land. In this Chapter, I outline the theoryand the framework for analysis underpinning the book.

Theory must be understood in the context of a framework that allowsthe extension of the ‘frontiers of knowledge’ of a (social) reality. Thetheory that underpins the book is a composite that coalesces under theFoucauldian ‘idea’ of governmentality. I have made observations on thechoice and suitability of the theory for the book: The core utility of thetheory is that it provides a basis for the depiction of the responsibilisationof a population under market-based land reform models. The coalescenceof the theory itself comes about in light of the interpretation of the ‘idea’ ofgovernmentality by a variety of scholars such as Dean,2 and Golder andFitzpatrick,3 to mention a few. Hence, the use of governmentality isFoucauldian because it is not only limited to Foucault’s work on the ‘idea’

1 A ‘concept’ constitutes an abstract, universal meaning of an ‘idea’ while ‘conception’entails its social construction on the basis of multiple variables in a country: A George‘The difficulty of defining “property”’ (2005) 25 Oxford Journal of Legal Studies 797.

2 M Dean Governmentality: Power and rule in modern society (1999).3 B Golder & P Fitzpatrick Foucault’s law (2009).

2CHAPTER GOVERNMENTALITY,

RESPONSIBILISATIONAND THE LAND QUESTION

36 Chapter 2

of governmentality. I engage with other re-interpretations ofgovernmentality available in the academy.

Finally, I propose a framework for analysis based on a two-tiered re-interpretation of responsibilisation. Under the framework, I am arguing forwhat I have called people-generated responsibilisation; which primarilyinvolves the responsibilisation of the state. People-generatedresponsibilisation is based on people sovereignty. In another description, itis rooted in constituent power. The central role here is to lay down analternative approach to the resolution of the land question in Malawi.

1 Thinking theory

Theory here must be understood as a scientific rather than an etymologicalframework for analysing a (social) phenomenon. The theory in this bookcoalesces under the Foucauldian ‘idea’ of governmentality. The theory isa fusion of various interpretations and re-interpretations of Foucault’s‘idea’ of governmentality. It is not uncommon in the academy for a scholarto appropriate a particular theory as the basis for ‘solving’ or ‘discussing’ aparticular (social) phenomenon.4 In my case, there are three reasons forthe choice and suitability of the theory: The focus, under the Foucauldian‘idea’ of governmentality, on a population is useful. In market-based landreform, there is an abstraction and a decontextualisation of the constructedindividual. The responsibilised individual must be an entrepreneurialindividual; they must display universal behaviour in the quest to sustainthe market. Secondly, the complexity of governance under current globalgeopolitics requires a theory that enables an analysis of the possibility ofboth ‘domination’ and ‘emancipation’. Finally, the theory allows for ademonstration of the interplay amongst the intra-‘local’, the ‘local’ and the‘global’ that is not necessarily hierarchical. In sum, the theory allows foran analysis of the ‘situations’ or ‘processes’ that undermine or enhance theresolution of the land question in Malawi in the context of the dominanceof market-based land reform models. It allows for an analysis of the ‘richanalytic of power’ that is part of the ‘new ways of ruling’, under whatFitzpatrick describes as a ‘governing mentality’.5

4 Bix has observed that such appropriation is unfair because ‘purely analyticaldiscussions may be appropriated for purposes that they are not well-suited’: B BixJurisprudence: Theory and context (2006) 28.

5 D Dupont & F Pearce ‘Foucault contra Foucault: Rereading the “governmentality”papers’ (2001) 5 Theoretical Criminology 123 150-151; and P Fitzpatrick The mythology ofmodern law (1992) 150. Fitzpatrick notes that Foucault’s work on power emanates fromthe specific history of France and an exuberant appropriation of Foucault’s argumentsmay weaken the appropriator’s analysis. Fitzpatrick then argues that governmentalityis a cogent, general account of social regulation which is not necessarily confined toFrance: P Fitzpatrick (in this note). In this way, governmentality is a useful theoreticalbasis of this work which looks at the land question in Malawi.

Governmentality, responsibilisation and the land question 37

Hence, the choice of the theory here is not so much that it is ‘correct’or ‘true’. I do not lay a claim to its universal application. In fact, critics maybe scathing that a work that starts from Foucault is laying a claim totheory. After all, Foucault himself states:

I am an experimenter and not a theorist. I call a theorist someone whoconstructs a general system either deductive or analytical, and applies it todifferent fields in a uniform way. This is not my case. I am an experimenter inthe sense that I write in order to change myself and in order not to think thesame thing as before. 6

For my purposes, it is sufficient that the theory does not simply dwell onthe ‘points of friction’ but also seeks to examine the various relations – atthe intra-‘local’ level, the ‘local’ and the ‘global’ – in the analysis of theresolution of the land question in Malawi.7 The focus of the book is on‘situations’ and ‘processes’ that have shaped the land question. InFoucauldian terms, these – the ‘situations’ and ‘processes’ – are the‘technologies of normalisation’ which require profound analysis.8

2 The Foucauldian ‘idea’ of governmentality

Governmentality is a Foucauldian neologism that refers to ‘governmentalrationality’ or ‘rationality of government’.9 However, the nature ofgovernment is crucial for analysis. In the ‘Governmentality’ Lecture of 1February 1978,10 Foucault traces the development of governmentalitythrough the discussion of the pastoral power of the era of feudalism inEurope, the Machiavellian Prince, Jean-Jacques Rousseau’s socialcontract, Adam Smith’s political economy, and the post-war, neo-liberalthought in Germany, USA and France.11 A number of key points arehighlighted:

Foucauldian ‘government’ has a general, wide sense; and a narrowerone. The general, wide sense of governmentality refers to the ubiquitousmanner a people manage themselves. This general, wide sense isimbricated in the conventional understanding of sovereignty.12 The

6 M Foucault ‘Interview with Michel Foucault’ in J Faubion (ed) Power (2000) 240. CfGolder & Fitzpatrick (n 3 above) 3, who note Foucault’s propensity to reject theory.

7 Bix (n 4 above) 29. See also GA Meszaros ‘The MST and the rule of law in Brazil’(2007) 1 Law, Social Justice & Global Development Journal available at http://www.go.warwick.ac.uk/elj/lgd/2007_1/meszaros (accessed 14 October 2011).

8 M Foucault Power/knowledge: Selected interviews and other writings, 1972-1977 edC Gordon and trans C Gordon et al (1980) 137.

9 C Gordon ‘Governmental rationality: An introduction’ in G Burchell et al (eds) TheFoucault effect: Studies in governmentality (1991) 1.

10 M Foucault ‘Governmentality’ in G Burchell et al (above) 87.11 Gordon (n 9 above) 3; Foucault (above) 87-92.12 Foucault (n 10 above) 89; M Foucault Security, territory, population: Lectures at the Collège

de France, 1977-78, trans G Burchell (2009), particularly the lecture given on 1 February1978 (87-114), and the lecture given on 8 February 1978 (115-134); Golder &Fitzpatrick (n 3 above); and Dean (n 2 above).

38 Chapter 2

narrower sense, however, does not refer exclusively to the sovereign; it isan ‘art’ with a complex deployment of the ‘macrophysics’ and‘microphysics’ of power.13

In relation to the general sense of ‘government’, Gordon notes thatFoucault has interpreted it as the ‘conduct of conduct’.14 In this respect,governmentality relates to the mentality of government where there iscollective thought about knowledge of government. The collective thoughtis taken for granted and relates to the social, political and economic basesleading to the development of a ‘truth’.15 The collective thought convergesin the ‘[s]tate’ as the territorial sovereign. In a liberal legal order, the‘[s]tate’ uses ‘freedoms’ or ‘rights’ as the means or techniques of securingthe ‘ends of government’.16 Hence, the ‘freedoms’ may be ‘a naturalattribute, a product of civilisation or the exercise of rational choice in amarket.’17 The law in the realm of governmentality is merely ‘aninstrument of rule’.18 In modernity, the ‘new modality of power’ is centraland the state is only a constitutive part of the ‘art of government’.19

The narrower sense of governmentality expounds on the art ofgovernment. The art of government is not dependent on a sovereign but atthe same time it does not deny the efficacy of the sovereign. TheFoucauldian focus here is on the ‘activity’ or ‘practice’ as a way of knowingwhat ‘the activity [of government] consisted in, and how it might be carriedon’.20 Gordon comments:

[Governmentality] will thus mean a way or system of thinking about thenature of the practice of government (who can govern; what governing is;what or who is governed), capable of making some form of that activitythinkable and practicable both to its practitioners and to those upon whom itwas practised.21

Indeed, Foucault has argued that if government involves morality, theeconomy and politics, the art of government demonstrates the three‘norms’ – morality, economy and politics – as an ‘essential continuity’which remains to be ‘explained’ and ‘justified’.22 He states:

The art of government […] is essentially concerned with answering thequestion of how to introduce economy – that is to say, the correct manner ofmanaging individuals, goods, wealth within the family (which a good father isexpected to do in relation to his wife, children and servants) and of making

13 Gordon (n 9 above); Golder & Fitzpatrick (n 3 above); and Dean (n 2 above). 14 Gordon (n 9 above) 2.15 Dean (n 2 above) 16-18. 16 Dean (n 2 above) 15.17 As above.18 Dean (n 2 above) passim.19 Golder & Fitzpatrick (n 3 above); and Gordon (n 9 above) 4.20 Gordon (n 9 above) 3.21 As above.22 Foucault (n 10 above) 91.

Governmentality, responsibilisation and the land question 39

the family fortunes prosper – how to introduce this meticulous attention ofthe father towards his family into management of the state.

This, I believe, is the essential issue of the establishment of the art ofgovernment: introduction of economy into political practice.23

Hence, Foucault concludes that ‘the very essence of government’ is toensure that its objective is ‘the economy’.24 He asserts:

To govern a state will therefore mean to apply economy, to set up an economyat the level of the entire state, which means exercising towards its inhabitants,and the wealth and behaviour of each and all, a form of surveillance andcontrol as attentive as that of the head of a family over his household and hisgoods.25

What is implicit in Foucault’s interpretation of the narrow sense of thegovernment – the art of government – and its focus on the economy is thatthere is also a ‘duty’ requiring the ‘right disposition of things’.26 The‘things’ relate primarily to the regulation of the population.27 He states:

One governs things. But what does this mean? I do not think this a matter ofopposing things to men, but rather of showing that what government has todo with is not territory but rather a sort of complex composed of men andthings. The things with which in this sense government is to be concerned arein fact men, but men in their relations, their links, their imbrication with thoseother things which are wealth, resources, means of subsistence, the territorywith its specific qualities, climate, irrigation, fertility, etc.; men in theirrelation to that other kind of things, customs, habits, ways of acting andthinking, etc.; lastly, men in their relation to that other kind of things,accidents and misfortunes such as famine, epidemics, death, etc.28

Foucault proceeds to elaborate that the art of government here is not somuch concerned with a philosophical or theological ‘common good’ butrather a ‘convenient end’. Foucault argues that ‘convenient end’ implies a‘plurality of aims’.29 He contends:

[G]overnment will have to ensure that the greatest possible quantity of wealthis produced, that the people are provided with sufficient means of subsistence,that the population is enabled to multiply, etc. There is a whole series ofspecific finalities, then, which become the objective of government as such. Inorder to achieve these various finalities, things must be disposed – and thisterm, dispose, is important because with sovereignty the instrument thatallowed to achieve its aim – that is to say, obedience to the laws – was lawitself; law and sovereignty were absolutely inseparable. On the contrary, with

23 Foucault (n 10 above) 92.24 As above.25 Foucault (n 23 above).26 Foucault (n 10 above) 93.27 As above.28 Foucault (n 26 above).29 Foucault (n 10 above) 95.

40 Chapter 2

government it is a question of not imposing law on men, but of disposingthings: that is to say, of employing tactics rather than laws, and even usinglaws themselves as tactics – to arrange things in such a way that, through acertain number of means, such and such ends may be achieved.30

Further, Foucault contends that the ‘end of sovereignty’ lies in the ‘shapeof its laws’ while the ‘finality of government’ lies in the management of‘things’, the ‘perfection’ and ‘intensification’ of its processes. The‘instruments’ of government are not laws but ‘a range of multiformtactics’.31

Given that the art of government is concerned with governing ‘things’for ‘convenient ends’, Foucault’s comments on the control, ownership anduse of land in the political economy are illuminating in the context of thisbook. He has said:

The problematic of the économistes reintroduces agriculture as a fundamentalelement of rational governmentality. The land now appears alongside, and atleast as much as and more than the town, as the privileged object ofgovernmental intervention. It is a governmentality that takes the land intoconsideration, but it must no longer focus on the market, on the buying andselling of products, on their circulation, but first of all on production.32

Land is critical in the light of the Foucauldian ‘police of grains and thephenomenon of scarcity’.33 First, ‘the phenomenon of scarcity’ refers to‘man’s greed’; that is, the ‘need to earn’, the ‘desire to earn even more’, the‘egoism’ which in turn leads to ‘the phenomena of hoarding,monopolisation and withholding merchandise’.34 Under Foucault’sanalysis, the police of grains and the phenomenon of scarcity entail an‘economic’ policy based on the abundance of grain (or agriculturalproduce) and cheap wage labour; whose combination results intomaximum dividend from exports. Hence, the control, ownership, and useof land are critical. The art of government – the governmentality – isconcerned with the value of return to the producer.35 It is suggested thatthis producer, under this book, is the state, the Bretton Woods Institutionsand the Achikumbe. In turn, the land deprived have, over time in Malawi,constituted the source of cheap wage labour and the category of small-scale, auxiliary producers under market-based land reform modelling.36

30 As above.31 Foucault (n 29 above).32 Foucault Security, territory, population (n 12 above) 342.33 Foucault Security, territory, population (n 12 above) 341.34 Foucault Security, territory, population (n 12 above) 31.35 Foucault Security, territory, population (n 12 above) 343. The system described here

works well with a ‘just price’ and a population that does not have an ‘absolute value’but a ‘relative value’; that is, there must be a sufficient ‘agricultural population’ thatbecomes wage labour and simultaneously consumers to sustain production: Foucault(in this note) 344-345.

36 See the discussion in Chapters 1, 4 and 5.

Governmentality, responsibilisation and the land question 41

In the context of the emergence of the mercantilist predisposition in18th Century CE Europe, Foucault contends that the art of governmentevolved into a ‘science’ of government and in the process maintained its‘influence’ on the population. Science of government here refers to the‘statistics’ of the population and the extent to which these statisticsderestrict the art of government. The statistics relate to birth, death,disease, labour or wealth.37 Hence, the art of government becomes the‘exercise of power through [an] economy to regulate [a] population’.38

Foucault concludes:

By this word ‘governmentality’ I mean three things:

(1) The ensemble formed by institutions, procedures, analyses andreflections, calculations, and tactics that allow the exercise of this veryspecific albeit very complex, power which has as its target population, asits principal form of knowledge political economy, and as its essentialtechnical instrument apparatuses of security.

(2) The tendency which, over a long period and throughout the West, hassteadily led towards the pre-eminence over all other forms (sovereignty,discipline, etc.) of this type of power which may be termed government,on the one hand, in the formation of a whole series of specificgovernmental apparatuses, and, on the other, in the development of aseries of saviors.

(3) The process, or rather, the result of the process, through which the stateof justice of the Middle Ages transformed into the administrative state inthe fifteenth and sixteenth centuries, gradually becomes‘governmentalised’.39

It is arguable that this notion of governmentality is linked to sovereigntyand discipline that is embraced in a liberal, democratic state. Foucaulthimself concedes that within the framework of the art of government,sovereignty and discipline do not completely disappear.40

Governmentality, if anything, is a triangle of ‘sovereignty-discipline-government’.41 He has said:

[W]e need to see things not in terms of the replacement of a society ofsovereignty by a disciplinary society and the subsequent replacement of adisciplinary society by a society of government; in reality one has a triangle,sovereignty-discipline-government, which has as its primary target thepopulation and as its essential mechanism the apparatuses of security.42

The apparatuses – or the dispositifs – of security have four features: space;uncertainty (or what Foucault calls the ‘aleatory’); ‘normalisation’; and

37 Foucault (n 10 above) 99.38 Foucault (n 12 above) 19; and Foucault (n 10 above), 92, 99, 100, 102.39 Foucault Security, territory, population (n 12 above) 102-103. 40 Foucault (note 10 above) 102.41 As above.42 Foucault (n 10 above).

42 Chapter 2

fourth, the correlation of security and population.43 In his discussion of theapparatuses, Foucault gives three examples: town planning, food scarcity,and anti-epidemic vaccination campaign. He looks at the government of apolity through a concern with the ‘mobility’ of ‘produce’, people andwealth that circulates in an economy within and between states. Whilediscipline is understood as requiring a particular structure of hierarchy insociety, security relates to a particular ‘technology of power’.44 Foucaultargues that this takes place through the ‘plotting of the normal and theabnormal’ under a process of normalisation; or precisely, normation.45 Inthis respect, it is pertinent to consider the ‘disciplinary’ aspect ofgovernmentality. I now consider the ‘idea’ of governmentality in light ofthe analytics of power – particularly biopower.

2.1 Governmentality and analytics of power

Foucault’s narrower sense of governmentality is more nuanced than mereattribution that it is a collective of the mentality of government. It is‘counter-Machiavellian’.46 Foucault has pointed out that governmentunder the narrower sense of governmentality is not preoccupied withdefending the territory, it is embroiled in the conspiracy of men and things;especially men in their relations to wealth, resources, means of subsistence,and the specific qualities of the territory (such as climate and soilfertility).47 Dean points out that to the extent that ‘government is economicgovernment’, the ‘law’ need not defend sovereignty as a territorialmonopoly of a state.48 Indeed, as Foucault has said, the focus ofgovernment is the governing of ‘things’ through a ‘range of multiformtactics’ and law is one of the many tactics that may be deployed in thisenterprise.

Foucault also acknowledged the irreconcilability of a conception of thesovereign based on an economic model founded on the family.49 Hecontends that the ‘science of government’ derestricts the ‘art ofgovernment’ through ‘the recentring of the theme of economy on adifferent plane from that of family’ to the [general] population. Populationis critical because it is the ‘ultimate end of government’.50 He states:

In contrast to sovereignty, government has as its purpose not the act ofgovernment itself, but the welfare of the population, the improvement of itscondition, the increase of its wealth, longevity, health etc., and the means thatthe government uses to attain these ends are themselves all in some sense

43 Foucault Security, territory, population (n 12 above) 11.44 Foucault Security, territory, population (n 12 above) 1-49. 45 Foucault Security, territory, population (n 12 above) 55-86, especially 57, 63.46 Golder & Fitzpatrick (n 3 above) 31.47 Foucault (n 10 above) 93.48 Dean (n 2 above) 25.49 Dean (n 2 above) 98-99. 50 Foucault (n 10 above) 100.

Governmentality, responsibilisation and the land question 43

immanent to the population; it is the population itself on which governmentwill act either directly through large-scale campaigns, or indirectly throughtechniques that will make possible, without full awareness of the people, thestimulation of birth rates, the directing of the flow of population nowrepresents more the end of government than the power of the sovereign; thepopulation is the subject of needs, of aspirations, but it is also the object in thehands of government, of what it wants, but ignorant of what is being done toit.51

The management of a population requires a nuanced form of ‘discipline’.52

In the light of the discussion of the nature of governmentality in thepreceding section, the focus here will be on Foucault’s conception of‘biopower’. Biopower first comes to the fore in The will to knowledge: Thehistory of sexuality – Volume 1.53 Foucault’s conception of ‘biopower’ is thatit is the ‘power over life’.54 Biopower emerges in contrast to the exercise ofthe authority of the sovereign where the sovereign’s right to rule was basedon the underlying possibility of death on the part of the subject; the ‘rightto take life or let live’.55 Biopower is bipolar; it encompasses disciplinarypower over the individual, human body (the ‘anatomo-politics of thehuman body’). This centres on the ‘body as a machine’ and is concernedwith its ‘discipline’, ‘optimisation’, ‘efficiency’, even its ‘docility’.56 Thesecond pole of biopower is what Foucault calls ‘a biopolitics of thepopulation’.57 The latter pole is concerned with the ‘propagation’, ‘birth’,‘mortality’, the ‘level of health’, ‘life expectancy’, ‘longevity’, and allfactors that may enhance or undermine these conditions in relation to the‘species body’; that is, the population.58 In this respect, it is possible toattribute a global ‘outlook’ or permeation to biopower. Biopower is not the‘old power of death’; it is the power that ‘invest[s] life through andthrough’.59 Hence, Hardt and Negri have commented, for example, thatbiopower refers to the ‘new paradigm of power’ that internalises socialregulation.60 Biopower is a part of ‘a complex multiplicity of power,

51 As above.52 Foucault has a fertile body of literature on ‘discipline’: See for example Discipline and

punish: The birth of a prison trans A Sheridan (1991); Security, territory, population (n 12above); The will to knowledge: The history of sexuality – Vol 1, trans R Hurley (1979);Power/knowledge (n 8 above); Abnormal: Lectures at the Collège de France 1974-1975, transG Burchell (2003); and ‘Society must be defended’: Lectures at the Collège de France, 1975-76trans D Macey (2003).

53 Foucault The will to knowledge (n 52 above) 140-141,143-144.54 Foucault The will to knowledge (n 52 above); H Baxter ‘Bringing Foucault into law and

law into Foucault’ (1996) 48 Stanford Law Review 449: and T O’Leary Foucault: The artof ethics (2002) cited in Golder & Fitzpatrick (n 3 above).

55 Foucault The will to knowledge (n 52 above) 135-136 (emphasis in the original). 56 Foucault The will to knowledge (n 52 above) 139.57 Foucault The will to knowledge (n 52 above).58 As above.59 As above.60 M Hardt & A Negri Empire (2001) 22-27. Hardt and Negri have referred to biopower as

‘a form of power that regulates social life from its interior, following it, interpreting it,absorbing it, and rearticulating it’. They go on to assert that ‘[p]ower can achieve aneffective command over the entire life of the population only when it becomes an

44 Chapter 2

technologies, strategies and effects’ beyond economic development.61

Power in this sense is not ‘static’; it is ‘mobile and open’.62

It is worth noting at this point that Golder and Fitzpatrick assert thatFoucault never discussed the relationship between governmentality andbiopower. They further contend that because of the breadth of theconception of biopower, he never ‘fully thematised’ it. They contradictO’Leary who argues that biopower is ‘conceptually […] included in theconcept of governmentality’.63 To the extent that Golder and Fitzpatrickthemselves acknowledge that governmentality ‘as a form of poweroperates alongside the disciplines’,64 it is arguable that Foucault’sconceptions of governmentality and biopower respectively arecomplementary.65 In my view, if the argument is limited to the context of‘disciplines’, Foucault builds on biopower in his articulation of thenarrower sense of governmentality. This is apparent in light of the triangleof sovereignty-discipline-government that Foucault has argued constitutesgovernmentality.

2.2 Governmentality and law

In relation to Foucault’s general body of work, a number of academiccommentators have argued that Foucault expels law from ‘his analyses ofcontemporary power relations’.66 The argument here – what Golder andFitzpatrick call the ‘expulsion thesis’ – goes as follows: To the extent thatFoucault argues that there is an emergent disciplinary power in modernity,this means that there is a transition from ‘old forms of law and sovereignty’where law is ‘decreasingly important’ and serves an instrumental role tothe emergent power.67 This discussion is limited to the relationshipbetween governmentality and law.

Golder and Fitzpatrick in Foucault’s Law argue that the place of lawunder disciplinary power is ‘attenuated’ rather than completely expelled;that is, law is ‘polyvalent’.68 It is part of a triangulation under

60 integral, vital function that every individual embraces and reactivates of his or her ownaccord’. They conclude that ‘[b]iopower refers to a situation in which what is at stakein power is the production and reproduction of life itself ’.

61 J Joseph ‘Neoliberalism, governmentality and social regulation’ Paper prepared forSAID Workshop, April 2007 (on file with the author) 5.

62 Joseph (n 61 above) 29.63 Golder & Fitzpatrick (n 3 above) 32; and O’Leary (n 54 above). 64 Golder & Fitzpatrick (n 3 above) 33.65 Dean attributes a ‘techne of government’ and an ‘episteme of government’ in his

conceptualisation of governmentality. By techne of government, Dean refers to the ‘thetechniques of regulation’ in a country. The episteme of government are the ‘forms ofknowledge’ that arise from and ‘inform the activity of governing’: Dean (n 2 above) 31.

66 Golder & Fitzpatrick (n 3 above) 12-25. From the legal academy, a notable critique ofFoucault on the point is A Hunt & G Wickham Foucault and law: Towards a sociology oflaw as governance (1994).

67 Golder & Fitzpatrick (n 3 above) 35-39. See also Hunt & Wickham (above).68 Golder & Fitzpatrick (n 3 above) 53-97.

Governmentality, responsibilisation and the land question 45

governmentality where it is re-configured in a ‘governmental-administrative apparatus’.69 As pointed out above, Foucault has arguedthat law is critical to the ‘finality’, that is the authority, of the sovereign. Inthe context of governmentality, law is part of the so-called ‘range ofmultiform tactics’. It is one of the many ‘strategies’ utilised in the art ofgovernment. Law is not as exclusive under governmentality as it is underthe sovereign where it is ‘the blunt, vicious and antiquated tool ofsovereignty’.70 The point here is crucial for the analysis of the landquestion in Malawi. One of the main issues that is analysed under the bookis the primacy of law; particularly the tendency to transform land reforminto land law reform. In Chapters 4 and 5, I demonstrate that it is equallyvital to focus on other non-law bases of power in analysing the landquestion in Malawi.

3 ‘Everyday struggles’: Conduct and counter-conduct

A closer examination of the relationship amongst the key constituencies tothe land question in Malawi – the state, Bretton Woods Institutions,Achikumbe and the land deprived – is not perfectly reducible to that of a‘dominator’ and a ‘dominated’. There are ‘everyday struggles’.71 In thecase of the key constituencies to Malawi’s land question, the struggles arenot the monopoly of a particular constituency.72 The struggles may bewithin the land deprived; the Achikumbe as against the land deprived; theAchikumbe or land deprived as against the state; or the state as against theBretton Woods Institutions. Hence, while the broader scheme ofgovernmentality generates a ‘disciplined’ population, the ‘everydaystruggles’ resonate with the Foucauldian ‘counter-conduct’. Indeed,Foucault has contended that in the scheme of ‘shifts’ in the ‘mode of‘resistance’ in modern society, it is more precise to refer to ‘counter-conduct’ as opposed to ‘misconduct’ or ‘dissidence’. He has said that to theactive sense of ‘conduct’, analysis cannot deploy the passive sense ofbehaviour depicted by ‘misconduct’.73 Foucault argues that the use of‘misconduct’ or ‘dissidence’ allows an undue ‘substantification’.74 Hestates:

[T]his word ‘counter-conduct’ enables us to avoid a certain substantificationallowed by the word ‘dissidence.’ Because from ‘dissidence’ we get ‘dissident,’or the other way round, it doesn’t matter, in any case, dissidence is the act of

69 As above.70 Golder & Fitzpatrick (n 3 above).71 JC Scott Weapons of the weak: Everyday forms of peasant resistance (1985).72 Scott (n 72 above) 30.73 Foucault Security, territory, population (n 12 above) 191-226, especially 201. See also

G Burchell ‘Review essay: Confession, resistance, subjectivity’ (2009) 13 Journal forCultural Research 165.

74 Foucault Security, territory, population (n 12 above) 202.

46 Chapter 2

one who is a dissident, and I am not sure that this substantification is veryuseful. I fear it may even be dangerous, for there is not much sense in saying,for example, that a mad person or a delinquent is a dissident. There is aprocess of sanctification or hero worship which does not seem to me of muchuse. On the other hand, by using the word counter-conduct, and so withouthaving to give a sacred status to this or that person as a dissident, we can nodoubt analyse the components in the way in which someone actually acts inthe very general field of politics or in the very general field of powerrelations[.]75

4 Responsibilisation: A framework for analysis

So far, I have endeavoured to explain the idea of governmentality. Whilethe idea of governmentality is central to the theory under the book; anumber of ‘meta-theories’ also emerge. This is the case considering theexpansive use of the idea of governmentality beyond Foucault.

The theory as presented is useful because it allows the book to focus on‘situations’ or ‘processes’ that enhance or undermine the resolution of theland question in Malawi. The ‘situations’ or ‘processes’ are primarilyconsidered through the interaction of the four key constituencies in the on-going land reform. Indeed, the use of governmentality in the theory allowsthe analysis to consider the ‘tactics’ – law and possibly a plethora of others– underway under the land reform. However, while the ‘tactics’ are useful,in the context of a liberal legal order that prevails in Malawi, and furtherin light of the dominance of market-based land reform models indevelopment discourse, it is equally important in my view to establish thevalue that underlies the use of a particular ‘tactic’ in the politicaleconomy.76 It is at this juncture that I propose a framework for analysisbased on the conception of responsibilisation.

I note in Chapter 1 that the conception of responsibilisation as adoptedin this book starts with Shamir. Further, I argue for two strands ofresponsibilisation: hegemonic and people – generated responsibilisationrespectively. I discuss the two strands below:

4.1 The nature of hegemonic responsibilisation

In societal interaction, responsibility envisages, at the innate level, thatmembers will act ‘reasonably’ or ‘responsibly’ to maintain ‘harmony’,‘inclusivity’ and ‘civility’.77 This notion of societal interaction stresses an

75 As above.76 On ‘value’: E Anderson Value in ethics and economics (1995); and A Thomas Value and

context: The nature of moral and political knowledge (2006).77 J Clarke ‘New labour’s citizens: Activated, empowered, responsibilised, abandoned?’

(2005) 25 Critical Social Policy 451.

Governmentality, responsibilisation and the land question 47

underlying moral ethic.78 However, the ‘construction’ of the individualthrough ‘governmental constitution’ epitomises hegemonicresponsibilisation.79 Hegemonic responsibilisation is pervasive in thedebates in the academy.80 By hegemonic responsibilisation, one may drawfrom the Gramscian notion of ‘hegemony’ where the ‘value’ of the‘dominant class’ is imposed on the ‘dominated’ to maintain a status quo.81

Indeed, hegemonic responsibilisation may refer to processes that includeconstitutional reform,82 ‘new’ macroeconomic frameworks,83 grandprojects on legal and judicial reforms,84 including new approaches to landlaw and policy;85 all meant to attain what has been called a ‘responsibilisedcitizen’.86 Hegemonic responsibilisation privileges state or non-stateinstitutional apparatuses that use techne to discipline, in the Foucauldiansense, a population. The proposition here is that under hegemonicresponsibilisation the ‘market’ based on a Hayekian catallaxy as the normforms the basis of the value that informs the responsibilisation of theindividual in the political economy.87 The classic economic efficiencyargument that has been applied in land reform discourse would be anexample of the nature of hegemonic responsibilisation. In the followingpart, I will introduce an agenda for a framework for people-generatedresponsibilisation. The notion of people-generated responsibilisation ariseswithin the possibility under Foucauldian ‘power’ where power is not – asalluded to before – annihilatory. Foucauldian ‘power’ is conducive forcreation, re-creation and de-construction.88

4.2 The nature of people-generated responsibilisation

The ‘idea’ of people-generated responsibilisation is based on peoplesovereignty. It has been argued in constitutional theory that the authorityto govern derives from the people as a repository of ‘constituent power’.Negri, for instance, has argued that ‘constituent power’ is an expression ofthe popular will; it is the power of the ‘multitude’. Negri contends that

78 As above.79 Clarke (n 77 above).80 Clarke (n 77 above); T Basok & S Ilcan In the name of human rights: Global

organisations and participating citizens’ (2006) 10 Citizenship Studies 309; andO Löweinheim ‘The responsibility to responsibilise: Foreign offices and the issuing oftravel warnings’ (2007) 1 International Political Sociology 203.

81 A Gramsci Selections from prison notebooks of Antonio Gramsci ed and trans Q Hoare &GN Smith (1971) 5-23.

82 SP Huntington ‘Democracy’s third wave’ (1991) 2 Journal of Democracy 12. 83 D Booth Fighting poverty in Africa: Are PRSPs making A difference? (2003).84 J Faundez ‘Legal reform in developing and transition countries – Making haste slowly’

(2001) 1 Law, Social Justice and Global Development available at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/faundez/ (accessed 30 June 2012).

85 World Bank Land policies for growth and poverty reduction (2003).86 Clarke (n 77 above) 451-452. 87 FA Hayek ‘The market order or catallaxy’ in FA Hayek Law, legislation and liberty:

Volume 2 – The mirage of social justice (1976).88 T Parfitt ‘Are third world poor homines sacri? Biopolitics, sovereignty and development’

(2009) 34 Alternatives 41.

48 Chapter 2

‘constituent power’ is in constant conflict with ‘constituted power’, whichis the fixed power of formal constitutions. ‘Constituent power’, in Negri’sthesis, would lie neither with the legislature nor the judiciary as, accordingto him; the propensity ‘to revolt’ lies with the people themselves.89

People-generated responsibilisation necessarily requires a focus on thestate. In the context of the resolution of the land question under the on-going land reform in Malawi, I propose a two-tiered framework: The firsttier relates to an analysis of section 12 of the Constitution of Malawi whichprovides for the public trust and the social trust.90 The constitutionalprovision outlines a set of duties that the state owes to the people ofMalawi in the discharge of its legal and political authority. The second tierdraws from Mudimbe’s idea of gnosis.91 In The Invention of Africa, Mudimbeadopts gnosis from the Greek word ‘gnosko’ meaning ‘to know’ indeveloping his thesis on African knowledge; particularly ‘the notion ofphilosophy to African traditional systems of thought’.92 He states:

Specifically, gnosis means seeking to know, inquiry, methods of knowing,investigation, and even acquaintance with someone […] Gnosis is differentfrom doxa or opinion, and, on the other hand, cannot be confused withepisteme, understood as both science and general intellectual configuration.93

In this context, Mudimbe has argued that gnosis has a ‘sociohistoricalorigin’ and an epistemological context’ that allows ‘the notion ofconditions of possibility’ to flourish.94 In this sense, gnosis is the cognitivemake up of counter-conduct. It need not be institutionally located. It isinnate to the human as a social being. Second, the suggestion here is thatas a repository of constituent power, the people as a sovereign are theprimordial arbiter of ‘knowing’; who can govern, what is to govern, orwhat or who is governed; and the methods of the knowing to govern.95

89 A Negri Insurgencies: Constituent power and the modern state (1999) 1-35.90 G Kamchedzera & CU Banda ‘The right to development, the quality of rural life, and

the performance of legislative duties during Malawi’s first five years of multipartypolitics’ Research Dissemination Seminar Number Law/2001-2002/001, available athttp://www.sarpn.org.sa/documents/d0001966/index.php (accessed 20 July 2011).See also G Kamchedzera & CU Banda ‘Dignified rural living, the right todevelopment, multiparty politics and legislation in Malawi’ (2009) 25 South AfricanJournal on Human Rights 93.

91 VY Mudimbe The invention of Africa: Gnosis, philosophy, and the order of knowledge (1988). 92 Mudimbe (n 91 above) ix.93 Mudimbe (n 91 above).94 Mudimbe (n 91 above) ix-xii.95 Gordon (n 9 above); Negri (n 89 above); and Mudimbe (n 91 above). The suggestion

compares with Gramsci’s idea of organic intellectual. The only difference is thatGramsci’s intellectual is located in a party politics structure. Under a Gramscianinterpretation of the organic intellectual, the intellectual is the ‘thinker’ and ‘organiser’whose basic function is to ‘direct’ the ‘ideas’ and ‘aspirations’ of his or her social classin a society: Gramsci (n 81 above). Adamson observes that according to Gramsci, theorganic intellectual has a critical role, whose ‘social function is to serve as a transmitterof ideas within civil society and between government and civil society’: W AdamsonHegemony and revolution: A study of Antonio Gramsci’s political and social theory (1980) 143.The organic intellectual is one of a kind ‘specialised in the conceptual and

Governmentality, responsibilisation and the land question 49

The reference to the public trust and the social trust under theConstitution does not mean deference to a formal, legal ‘ordering’ as thebasis for the knowing to govern. The invocation of Mudimbe’s gnosis is toargue for ‘possibility’; for a change of mindset. The public trust and thesocial trust under the Constitution is an expression of the terms of‘governing’ between the citizen as the ‘governed’ and those entrusted withthe exercise of state authority – the ‘governors’.96

In this way, people-generated responsibilisation becomes the vehiclethrough which a constituency of the ‘dominated’ such as the land deprivedassert themselves as the holders of the gnosis of ‘governing’ in a polity. Thechange of mindset lies in the realisation of the multitude as the ‘setters’ ofagenda. This formulation of people-generated responsibilisation seeks totranscend the parameters of ‘legality’ and affect the whole politicaleconomy. This is one way of actualising Foucauldian counter-conduct. InChapter 5, I discuss the interaction of the land deprived with the state andthe Achikumbe respectively which seeks to demonstrate the operation ofpeople-generated responsibilisation.

Scholars such as Santos have, in my view, tended to remain faithful to‘legality’ and only criticise what has been called hegemonic globalisationfor its top-down approach. Santos’ counter-hegemonic globalisation thesisor the subaltern cosmopolitan legality book argues for bottom-up‘construction’ of legality.97 This approach has its usefulness. The pointhere is simply that it must be recognised that a focus on ‘legality’ as the siteof ‘struggle’ is narrow given the ‘range of multiform tactics’ in a polity.

In this respect, people-generated responsibilisation lends credence toHarvey’s declaration of a ‘battle of ideas’.98 This battle is between adominant narrative of the universal efficiency of liberalism (or its ‘protégé’,neo-liberalism) against alternative narrative to a broadly construed socialwell-being. This battle is more so pertinent in Africa under the new waveof land reform. Indeed, scholars such as Mudimbe and Mbembe have beenscathing. Mbembe has argued, for example, that the ‘African’ has beencaught in a ‘trance’ having been betrayed by the erstwhile nationalist elitesand a complicit – at best – or ‘docile’ – at worst – middle class.99

95 philosophical elaboration of ideas’: Adamson (in this note) 145. The organicintellectual ‘acts only to enter into a dialectic with the democratic organisation of themasses ... founded on political and intellectual self-activity,’ rather than any ‘externalformula’: Adamson (in this note) 41.

96 Mudimbe (n 91 above).97 B de Sousa Santos New legal common sense: Law, globalisation and emancipation (2002);

and B de Sousa Santos ‘Beyond neoliberal governance: The World Social Forum assubaltern cosmopolitan politics and legality’ in B de Sousa Santos & CA Rodriguez-Garavito (eds) Law and globalisation from below: Towards a cosmopolitan legality (2005).

98 D Harvey A brief history of neoliberalism (2007).99 Mudimbe (n 91 above); and A Mbembe On the postcolony (2001). See also Sklair’s

notion of a self-interested, transnational, capitalist class: L Sklair Globalisation:Capitalism and its alternatives (2002).

50 Chapter 2

5 Governmentality-responsibilisation: Whither the resolution of the land question in Malawi?

For the analysis of the land question in Malawi, I propose that law mustbe located in the political economy. By political economy, I simply meanthe production and redistribution of wealth; including the provision ordenial of the factors of production of wealth. By locating law in thepolitical economy, the analysis goes into ‘situations’ and ‘processes’ thathave defined the land question in Malawi. It allows for an examination of‘ideas’ rather than a functional approach to law. It is in this regard that thestarting point for the analysis of the land question in Malawi under thebook is not merely law for its own sake. McConville and Chui state:

[T]he starting point is not law but problems in society which are likely to begeneralised or generalisable. Here, law itself becomes problematic both in thesense that it is a contributor to or the cause of the social problem, and in thesense that while law may provide a solution, other non-law solutions,including political and social re-arrangement, are not precluded and mayindeed be preferred.100

This is a pertinent observation that fits in with the argument Foucaultmakes that under the art of government; law is only a part of a range ofmultiform tactics. Hence, the proposed re-positioning of law brings in themacro-economic debates on the role of land in the political economy ofMalawi. Of prime consideration here is whether land reform must supportthe estate sector or smallholders (or both) for the country’s agriculturalpolicy direction. The other debate relates to the question whether there isa policy synergy between the land framework – the National Land Policy– and the macro-economic framework – particularly the Malawi Growthand Development Strategy II. In sum, I am proposing a holistic approachto the land question in Malawi that does not merely involve the translationof land reform into land law reform. I endorse the sentiments of McAuslanhere. He contends that the move from ‘policy’ to ‘law’ – preciselylegislative drafting – must not focus on ‘legal technicality’; it must remaina ‘policy’ debate throughout the reform process.101 Otherwise, ‘abstractinstrumentalism’ perpetuates the land question in a country.102

There is also the issue of dignified living, especially in the context ofthe levels of impoverishment of the land deprived in political economiessuch as Malawi. Kamchedzera and Banda, writing on the right todevelopment and its realisation amongst rural communities in Malawi,establish that dignified living is the primary aspiration of people in rural

100 M McConville & WH Chui ‘Introduction and overview’ in M McConville &WH Chui (eds) Research methods for law (2007) 1.

101 P McAuslan Bringing the law back in: Essays in land, law and development (2003) 251.102 McAuslan (n 101 above); and P Fitzpatrick Law as resistance: Modernism, imperialism,

legalism (2008) 41.

Governmentality, responsibilisation and the land question 51

areas of the country. They argue that dignified living refers to the existenceof (social) conditions in a locality that makes living a life with humandignity possible. In other words, dignified living goes to the root of‘human-being-ness’.103

6 Final word

The theory that I have adopted for the book – based as it is on theFoucauldian ‘idea’ of governmentality – seeks to focus the inquiry on the‘situations’ or ‘processes’ of responsibilisation under the on-going landreform in Malawi. In doing so, the analysis will examine the interaction ofthe key constituencies under the reform in the country; namely the state,the Bretton Woods Institutions, the Achikumbe and the land deprived. Theexamination of this interaction seeks to determine the form and the extentto which the interaction is shaping a responsibilised population undermarket-based land reform models. Put another way, in the context of aland question in a weak economy such as Malawi, a governmentality-responsibilisation analysis provides the basis to examine the propositionthat market-based land reform leads to a sustained emergence of the landowner as the ‘efficient’ producer and the land deprived as the cheaplabourer.

The complementarity of governmentality and responsibilisation issuch that the latter allows for the recognition and analysis of a value thatis underpinning the art of government in a country. In looking atresponsibilisation, it has been noted that what I have called hegemonicresponsibilisation is pervasive in academic scholarship that usesresponsibilisation as a framework for analysis. Hegemonic responsibili-sation focuses on the individual as the primary ‘unit’ of a population.Hence, hegemonic responsibilisation generates the responsibilisedindividual.

Beyond hegemonic responsibilisation, I make a case for what I havecalled people-generated responsibilisation. I propose that people-generatedresponsibilisation must necessarily focus on the sate itself; particularly theexercise of state authority. People-generated responsibilisation must leadto a responsibilised state. The central point here is that the public trust andthe social trust under the Constitution of Malawi underlie the exercise ofstate authority. A ‘governor’ does the governing with the ‘consent’ or‘legitimation’ of the people as a repository of constituent power. In thecircumstances, if reference is made to Foucauldian ‘convenient ends’ thatunderpin the art of government, those ‘ends’ must optimally favour thepeople. Hence, in this context, one way of framing the resolution of theland question becomes: who optimally benefits under the proposed

103 Kamchedzera & Banda ‘Dignified rural living, the right to development, multipartypolitics and legislation in Malawi’ (n 90 above).

52 Chapter 2

resolution of the question; how does the stated benefit arise; and why is thestated beneficiary, the one to benefit.

The relationship of governmentality-responsibilisation and a landquestion necessitates the location of law in the political economy: In therealm of governmentality, ‘regulation’ or ‘discipline’ does not reveal itselfin the specificity of the law only. There is a range of multiform tactics.Hence, ‘regulation’ or indeed ‘discipline’ emerges from multiple ‘sites’;including ‘ideology’, ‘law’ and ‘policy’.104 It is imperative, in thecircumstances, that law is not the only focus of the analysis of the landquestion in Malawi. A holistic approach that problemmatises the wholepolitical economy is preferable.

The ‘reliability’ of the ‘tools’ of inquiry – the theory and a frameworkfor analysis – depends upon the ‘stability’ of the social phenomenon underexamination.105 In the short and even long term, the ‘reliability’ of thetheory and framework for analysis rests on two assumptions. First, theprevailing land question in Malawi remains unresolved. The secondassumption is that the centrality of market as value continues to dominatedevelopment discourse. Suffice it to say that while the dominance ofmarket as value remains invasive in the debate in development discourse,the role of the state is once again changing; with the state gravitatingtowards the centre.106

The analysis of the land question in Malawi will require a frontalengagement with the abstraction thesis in rights discourse; the liberalconception of the right to property, precisely the right to land; and acontextual analysis of the ‘construction’ and ‘re-construction’ of theindividual under market-based land reform models. In the next Chapter, Iexamine the conception issues that relate to the nature of a ‘right’; themeaning of ‘property’; the right to property as a legal relation; the right toproperty as a social relation; the right to land as a specific ‘type’ of the rightto property; including the nature of the ‘customary’ space.

104 Golder & Fitzpatrick (n 3 above).105 FE Kanyongolo Human rights jurisprudence in polarised societies: A comparative analysis of

Malawi and South Africa, unpublished PhD Thesis, University of East Anglia, 1999, 23.106 R Skidelsky Keynes: The return of the master (2009); and S Adelman ‘The unexceptional

exception: Sovereignty, human rights and biopolitics’ available at http://ssrn.com/abstract=1534608 (accessed 25 October 2012)

53

In Chapter 1, I point out that a clearly defined land question must lead toan equally, clearly established purpose and direction of land reform. I alsoobserve that the African land question or indeed country-specific landquestions have been mired in confusion and dissensus and this hasundermined the purpose and direction of land reform in the Africanpostcolony. In Chapter 2, I argue that clearly defined parameters of theconstitutive conception, theory and framework for analysis shouldcomplement strategies to resolve a land question. The confusion anddissensus around a land question arise, largely, because of the lack ofclarity in the conception of the right to property in land and the ideologicalfactors that permeate land reform discourse. The conceptual issues relatingto a ‘right’; ‘property’; and the ‘customary’ space are discussed in thisChapter. The central argument in this Chapter is that in formulating thestrategies for the resolution of the land question in weak economies in sub-Saharan Africa such as Malawi, the conception of the right to property inland must be located within the framework of the right to property as asocial relation.

The liberal conception of the right to property in land is dominant inland reform discourse. This conception is based on the Lockean labourtheory of property or appropriation.1 This enables a focus on theresponsibilisation of a homo economicus whose responsibilisation is crucialfor the sustenance of the market. The liberal conception of the right toproperty in land has meant that it is abstracted, de-historicised and de-contextualised.

The conception of the right to property as a social relation allows asocial constructionist approach to ‘property’. The approach incorporates

1 J Locke Two treatises of government (1988) II Chap 5, paras 25-31, cited in B BixJurisprudence: Theory and context (2006) 249. See also R D’Souza ‘Liberal theory,human rights and water-justice: Back to square one?’ 2008 (1) Law, Social Justice &Global Development Journal available at http://www.go.warwick.ac.uk/elj/lgd/2008_1/desouza (accessed 14 October 2012) on liberal theory and liberalism generally.

3CHAPTER ‘RIGHT’, ‘PROPERTY’ AND

THE ‘CUSTOMARY’ SPACE:CONCEPTUAL ISSUES AND

THE LAND QUESTION

54 Chapter 3

history and context as critical factors for the analysis.2 The conception ofthe right to property as a social relation enables the examination of the landquestion in Malawi that focuses on the underlying ‘technologies ofnormalisation’ shaping and re-shaping the land question.

The following summation is pertinent: In relation to the nature of aright to property it must be observed that there are different perspectives tothe notion of a ‘right’. The dominant discourse on the nature of a ‘right’states that it is liberal and exclusive to an individual. In relation to a ‘right’to ‘property’, the reference is not to the ‘thing’ or ‘land’; it is in the ‘thing’or ‘land’.3 The right to property is wider and the right to land is narrower.Further, the right to property cannot be arbitrarily deprived orexpropriated. The liberal notion of a ‘right’ to ‘property’ informs market-based land reform models.

Second, the conception of the right to property as a social relationallows the examination of the ‘worldview’ relating to the ‘customary’space and ‘customary’ tenure. The worldview regarding ‘customary’tenure is that it is communal in nature. The proponents of the reform of the‘customary’ space under a land reform programme base their argumentsostensibly on the economic inefficiency of the communitarian ethos of the‘customary’ tenure. I discuss the ‘customary’ space under threeapproaches: the sentimentalist, the revisionist, and the legal pluralismapproaches. The argument is that the conception of the ‘customary’ spacehas been a major factor for the irresolution of the land question in a weakeconomy such as Malawi.

1 The nature of a right to property

The conception of ‘property’ invites varied perspectives of inquiry.George, for instance, suggests three perspectives of inquiry; namely, thenormative, ontological and utilitarian.4 The normative perspective raisesquestions that address the ‘form of property’; what ‘thing’ is property, the‘boundaries’ between private property and communal property, and thebeneficiary of (particular) property. The ontological perspective raisesquestions that deal with the ‘innate characteristics’ of ‘property’ in‘particular whether the ‘innate characteristics’ are universal to all property‘systems’ or they are ‘conceptually contextual’ or ‘culturally dependent’.Finally, the utilitarian perspective raises what George calls the‘explanatory questions’; these questions confront the ‘ends’ of ‘property’.

2 A George ‘The difficulty of defining “property”’ (2005) 25 Oxford Journal of LegalStudies 797.

3 K & S Gray ‘The idea of property in land’ in S Bright & J Dewar (eds) Land law:Themes and perspectives (1998) 15 (emphasis in the original); and Dorman v Rodgers(1982) 148 CLR 365.

4 George (n 2 above).

Conceptual issues and the land question 55

The utilitarian perspective seeks to establish whether the end of property isthe achievement of social control or social justice.5

At a macro level, the normative perspective is concerned with the rolethe concept of property plays in ordering society. On the other hand, at amicro level, the concern is the instrumentality of the conception ofproperty towards the production of ‘specified social or economic ends orideological goals in a particular society’.6 The various perspectives ofinquiry that George suggests are not mutually exclusive. They areinterwoven. However, these perspectives buttress the point that ‘property’let alone the right to property – regardless of its conception – need not beanalysed in abstract and decontextualised terms. It must be historicisedand contextualised in analysis.

1.1 Character of a ‘right’

The Hohfeldian analysis of a ‘right’ has been significantly influential inlegal theory.7 In this respect, a ‘right’ has at least four attributes; a ‘right’as ‘claim’, ‘liberty’, ‘power’ or ‘immunity’.8 Beyond this Hohfeldiananalysis of a ‘right’, there are differences based on the conceptual nature ofa ‘right’ and the policy objective of a ‘right’. The conceptual differencesrevolve around whether benefit is a constitutive part of a ‘right’; that is,whether a ‘right’ must provide the ‘maximum degree of self-assertion’ or itis enough that a ‘right’ confers a benefit. The former case is what is referredto as the ‘Will/Choice Theory’ which is based on personal sovereignty asa ‘superior will’ and simultaneously lauds the sanctity of ‘individualdiscretion’. The latter scenario – which is referred to as the ‘Interest/Benefit Theory’ – can be explained in two ways: Its utilitarian explanationis that a ‘right’ must have an inherent benefit from the performance of a‘duty’. Second, a ‘right’ is contingent upon the recognition of an interestregardless of whether a ‘duty’ is imposed or not.9 The policy differencestend to dwell on the category of persons or things that may enjoy a‘right’.10

The conceptual and policy differences converge around(de)abstraction; whether a ‘right’ must be abstracted or de-abstracted.11

The abstraction thesis is grounded in liberal political theory whereby

5 George (n 2 above) 793.6 As above.7 Bix (n 1 above) 125-131. See also Dworkin’s discussion on ‘embarrassing questions’:

Taking rights seriously (1977) 14-16. 8 Bix (n 1 above) 127-128; and MDA Freeman Lloyd’s introduction to jurisprudence (2001)

355-358. 9 Freeman (n 8 above) 354-355. 10 Bix (n 1 above) 126.11 M Tushnet ‘An essay on rights’ (1984) 62 Texas Law Review 1363 who argues for de-

abstraction; and PJ Williams ‘Alchemical notes: Reconstructing ideals fromdeconstructed rights’ (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401 forthe contrary position.

56 Chapter 3

regardless of history and context, it is enough that a rights discourse islocated in the supremacy of the individual.12 This corresponds with theFoucauldian assertion that the individual is a ‘site’ where ‘power’ is mostconcentrated or targeted.13 The de-abstraction thesis, on the other hand,does not necessarily deny the supremacy of the individual. It, however,goes further to state that a denial of history and context works against thevery persons a rights discourse seeks to protect.14

In this book, the nature of a ‘right’ in the Hohfeldian sense is useful forits analytical value. It allows the examination of the responsibilisationunder a liberal-based, rights discourse. Whether a ‘right’ is granted or notdepends on the ‘convenient end’ being served in a political economy.15

Further, the de-abstraction book complements the conception of the rightto property as a social relation.

1.2 The meaning of ‘property’: The right to property as a social relation

There are three levels to the discussion of the right of property as a socialrelation. The first level looks at the liberal roots of ‘property’. At this level,property is grounded in the Lockean labour theory. The second onefocuses on the right to property as a social relation; particularly on thesocial constructionist approach to ‘property’.16 The third level is adiscussion of conception of the ‘customary’ ‘space’.

1.2.1 The right to property as a legal relation: The liberal roots to ‘property’

The legal meaning of ‘property’ does not refer to a ‘thing’ but to therelation amongst persons on the basis of a ‘thing’. The ‘thing’ has beendephysicalised and the focus is no longer on the dominion of persons over‘things’ but the dominion of the interpersonal relation or relationship.17 Inthis dephysicalised mould of ‘property’, Gray has conceived of ‘property’as ‘thin air’ and has defined ‘property’ as a ‘power relationship constitutedby legally sanctioned control over access to benefits of excludable

12 Williams (n 11 above).13 M Foucault The will to knowledge: The history of sexuality – Vol 1 trans R Hurley (1979).14 Tushnet (n 11 above); FE Kanyongolo Human rights jurisprudence in polarised societies: A

comparative analysis of Malawi and South Africa, unpublished PhD Thesis, University ofEast Anglia, 1999; Bix (n 1 above) 218; and Freeman (n 8 above) 972.

15 Bix (n 1 above) 128.16 SR Munzer ‘Property as social relations’ in SR Munzer (ed) New essays in the legal and

political theory of property (2001) 36-75. See also P Berger & T Luckmann The socialconstruction of reality: A treatise in the sociology of knowledge (1971).

17 K Vandevelde ‘The new property of the nineteenth century: The development of themodern concept of property’ (1980) 29 Buffalo Law Review 325. See also C Reich ‘TheNew Property’ (1964) 73 Yale Law Journal 773.

Conceptual issues and the land question 57

resources’.18 The relation can be strictly legal or social.19 The relation iswhat, at law, constitutes the ‘right’ or ‘interest’ in ‘property’.20 Hence, inproperty discourse, the primary reference is to a ‘right’ to ‘property’; thesecondary reference being to a ‘right’ to ‘property’ in land.21

‘Property’ as a legal relation is rooted in what Munzer calls ‘theHohfeld-Honore orthodoxy’.22 There are four attributes of ‘property’conceived as a legal relation; namely, nominal ownership, benefit, controland management.23 However, even in light of Gray’s and Munzer’sconception of ‘property’, just as with the consideration of a ‘right’, it mustbe acknowledged that the conceptual character of ‘property’ is asproblematic as its policy trajectory. At the conceptual level, there is whatGertzler describes as the ‘hohfeldian denial of property as a meaningfuljuristic category’ and, on the other, its ‘(re)discovery’ as a constitutive‘block’ of the legal and social order.24 The conceptual and policyconsiderations of ‘property’ tend to be conflated in analysis. At the centreof the debates here is the role of the individual and the state in relation to‘property’.25

The Lockean labour theory is the justification for private propertybased on the supremacy of individual autonomy. This is, in turn, premisedon the individual’s innate possession of ‘property’ as a reward for theirlabour. The supremacy of individual autonomy is also justified on the basisof the Benthamite utility argument and the law and economics argumentof opportunity cost.26 The libertarian individual is very atomistic.27 Thecounter-argument to the libertarian argument is that there is a context to

18 K Gray ‘Property in thin air’ (1991) 50 Cambridge Law Journal 252, 295. See also Gray& Gray (n 3 above).

19 Munzer (n 16 above) 37.20 JE Penner The idea of property in law (1997) 49-51. 21 T Honore ‘Property and ownership: Marginal comments’ in T Endicott et al Properties

of law: Essays in honour of Jim Harris (2006) 129-136, 131; Gray (n 18 above); and Gray& Gray (n 3 above).

22 Munzer (n 16 above) 37 citing WN Hohfeld Fundamental legal conceptions as applied injudicial reasoning (1978) and AM Honore ‘Ownership’ in AG Guest (ed) Oxford essays injurisprudence (1961).

23 Chitty J in In re Earnshaw-Wall (1894) 3 Ch.D 156; and Gray (n 18 above); Munzer (n16 above), 37; and GS Kamchedzera ‘Land tenure relations, the law and developmentin Malawi’ in Mhone (Chapter 1, n 12 above) 188-204.

24 J Gertzler ‘Property, personality and violence’ in Endicott et al (n 21 above) 271.25 Bix (n 1 above) 248.26 Gertzler (n 24 above); Locke (n 1 above). See also GWF Hegel Philosophy of right trans

TM Know (1952); MJ Radin ‘Property and personhood’ (1982) 34 Stanford Law Review957; SR Munzer ‘The commons and the anticommons in the law and theory ofproperty’ in MP Golding & WA Edmundson (eds) The Blackwell guide to the philosophyof law and legal theory (2005) 148-162; G Hardin ‘The tragedy of the commons’ (1968)162 Science 1243; and for a slightly different view: MA Heller ‘The tragedy of theanticommons: Property transitions from Marx to markets’ (1998) 111 Harvard LawReview 621, all discussed in Bix (n 1 above).

27 Locke (n 1 above); Hegel (n 26 above); Radin (n 26 above); Munzer (n 26 above);Hardin (n 26 above); J Rawls Theory of justice (1971); and R Nozick Anarchy, state andutopia (1974).

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the livelihood of the individual; there are family, community and otheridentities that determine the individual’s functionality.28

The supremacy of the individual under the liberal conception of theright to property is not inadvertent. In Chapter 2, I advance a Foucauldianproposition that the art of government is concerned with the disposal ofthings to achieve a convenient end. A range of multiform tactics is used inthe process of the disposal. Under a liberal order, the individual is crucialto what Foucault has described as a phenomenon of scarcity. Hence, aliberal conception of the right to property leads to constituencies of landowners and the land deprived; employers and employers respectively. Inan agrarian context, what emerges is a land owner whoseresponsibilisation is based on the inordinate exclusion or the hoarding ofland from a land deprived.29 The land deprived in this relation becomes asource of labour. Hence, the land owner as a producer, and the landdeprived as a labourer all contribute towards the value of return to theproducer. The producer’s value of return in turn feeds into the politicaleconomy. A critical thread to the land owner-land deprived relationship isthe exclusion, hoarding or monopolisation as a critical part of thephenomenon of scarcity.

1.2.2 The right to property as a social relation

A clear understanding of the right to property as a social relationnecessitates a quick overview of social constructionism.30 Socialconstructionism refers to a number of approaches to the study of humanbeings as social animals. These approaches include critical psychology,discursive psychology, discourse analysis, deconstruction, andpoststructuralism. This is a wide category and it brings with it problems ofessentialising subtly different approaches to social phenomena. However,Burr has suggested that if there is a social constructionist approach at allthen it is useful to look at the traits of ‘family resemblance’ for its analyticallinkages.31 Members of a family are different but there are enough‘recurrent features’ that identify them as members of one family.32 Hence,Burr argues that the ‘recurrent family features of the social constructionistapproach are that it emphasises critique: scholarship must take a ‘criticalstance’ to ‘taken-for-granted ways of understanding the world’; the worldis a ‘social world’ because it is a ‘product of social processes’.33

28 M Sandel Liberalism and the limits of justice (1998).29 Gray (n 18 above) 294 on excludability as the basis of the ‘propertiness’ in ‘property’.

He states that ‘[p]roperty is not about enjoyment of access but about control over access’:Gray (in this note) (emphasis in the original).

30 For a fuller discussion of social constructionism: Berger & Luckmann (n 16 above).31 V Burr Social constructionism (2003) 2.32 As above.33 Burr (n 31 above) 2-9.

Conceptual issues and the land question 59

Under this labelling, the theoretical approach of the book may beclassified as a type of social constructionism. A pertinent observation isthat Berger and Luckmann have argued that while social practices ofhuman beings shape or construct the ‘reality’, at the same time thesehuman beings may experience (or seek to experience) this ‘reality’ as if it isfixed or pre-ordered.34 In other words, human beings construct the (social)world which then becomes the ‘reality’ to which they must ‘respond’.35 Inrelation to property, the emphasis is on the subjective, historical andcultural specificity that define the conception of ‘property’ in a particularcountry.36 Hence, if anything, the social constructionist approachunderlies the law in context approach to (legal) phenomena. Gray andGray succinctly capture the social constructionist approach in relation tothe right to property as a social relation. They state:

‘Property’ is, rather, the word used to describe particular concentrations ofpower over things and resources. The term ‘property’ is simply an abbreviatedreference to a quantum of socially permissible power exercised in respect of asocially valued resource.37

‘Property’ as a social relation and as a ‘complete conception’ can beconfigured as follows: the individual is not atomistic, he or she is aconstruction of various competing interests in society; as society is madeof constructed individuals, we cannot ignore mutual ‘dependence; ‘power’or ‘coercion’ that define social relation which in turn has implications forthe nature of rights in property; the holder of ‘power’ or ‘coercion’ canundermine or enhance ‘right’ or ‘freedom’; the existence of ‘power’,‘coercion’ and the constructed individual leaves no room for (illiberal)‘autonomy’ in a country; the state is partisan; and finally that reform of thetheoretical and institutional framework of property law discourse isinevitable.38

In the final analysis, property as a social relation resonates withFoucauldian governmentality; particularly, the emphasis on the relationsof ‘men’ and ‘things’.39 Second, property as a social relation andgovernmentality also echoes the orthodox African thought that property(especially land) is life itself.40

34 Berger & Luckmann (n 16 above); and Burr (n 31 above) Chap 9.35 Berger & Luckmann (n 16 above); and Burr (n 31 above) 185-190. 36 Berger & Luckmann (n 16 above); Burr (n 31 above) 7.37 Gray & Gray (n 3 above) 15.38 Munzer (n 16 above) 40-43. 39 See Chapter 2.40 HWO Okoth-Ogendo ‘Some issues of theory in the study of tenure relations in African

agriculture’ (1989) 59 Africa: Journal of the International African Institute 6; and B Cousins‘Legislating negotiability: Tenure reform in post–apartheid South Africa’ in K Juul &C Lund (eds) Negotiating property in Africa (2002).

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1.2.3 Reconciling the right to property as a legal relation and, as a social relation

I acknowledge that some commentators have highlighted the conceptualweakness of the right to property as a social relation on the basis of thebreadth of the ‘social’ and ‘social interest’.41 This, it has been argued,undermines the delineation of the precise nature of the right to property asa social relation. I subscribe to the view that ‘property’ as a legal relation isultimately a subset of ‘property’ as social relation. This is the case ifrelation is conceived as the interaction of persons on the basis of ‘things’.While the notion of ‘property’ as a social relation at law may soundredundant, it is useful for a number of reasons: The emphasis on ‘property’as a social relation demystifies law. ‘Property’ as a social relation is usefulfor analysis because it allows for the focus on the ‘whole population’. Thisis the Foucauldian dimension of the analysis. Hence, if an analysis of‘property’ is de-abstracted and contextualised, it emphasises the intricateinteraction amongst persons and the construction and reconstruction ofthe individual for a defined and responsibilised role in a political economy.Indeed, Shivji has said the conception of the right to property as a socialrelation reveals the ‘real substance, that is, the social relations ofproduction’.42

2 The right to property in land: An analysis of the ‘customary’ space

In the discussion so far, a ‘right’ to ‘property’ entails that it is a ‘claim’,‘power’ or ‘immunity’ in a relation or relationship amongst persons on thebasis of a ‘thing’. The ‘thing’ is not corporeal, it is dephysicalised. Inherentin this conception is the idea of exclusion.43 The ‘right’ is invoked orproclaimed under a ‘threat’ of infringement. At common law, a ‘thing’ as‘property’ automatically generates its protection from deprivation orexpropriation. The deprivation or expropriation of property requires thedue process of law and its resulting compensation.44

In relation to land, the ‘right’ to ‘property’ entails that a person has a‘claim’, ‘power’ or ‘immunity’ over a parcel of the land in their relationwith (an)other person(s). Precisely, a person does not ‘own’ the physicalsolum; they ‘own’ some ‘unitary jural right’ over the solum.45 In the context

41 Munzer (n 16 above) especially 45-46, 71-75. 42 I Shivji Class struggles in Tanzania (1975) 5 (emphasis in the original).43 Penner (n 20 above). Penner has criticised the notion of ‘property’ as a ‘bundle of

rights’ on the basis that the parameters of the bundle are seemingly open-ended:JE Penner ‘The “bundle of rights” picture of property’ (1996) 43 UCLA Law Review 711referred to in Penner (n 20 above) 1-6; 49-51. See also Gray (n 18 above).

44 Vandevelde (n 17 above).45 Gray & Gray (n 3 above) 27.

Conceptual issues and the land question 61

of the ‘customary’ space and the nature of ‘customary’ (land) tenure, if a‘right’ is at least a ‘claim’, ‘power’ or ‘immunity’ and ‘property’ is therelation amongst persons on the basis of a ‘thing’, then the nature of thenexus between a ‘right’ and ‘property’ requires a more nuanced,contextualised scrutiny.

In weak economies in sub-Saharan Africa such as Malawi, adiscussion of the right to property as a right to land in the context of landreform must necessarily involve the unpacking of the ‘customary’ space. Inlooking at the root of the ‘customary’ space; the argument here is that thisis embedded in colonial sovereignty. The discussion of the root of the‘customary’ space is important because it has influenced the worldview ofthe ‘customary’ space and ‘customary’ (land) tenure in land reformdiscourse.

2.1 The root of the ‘customary’ space

I suggest that there are three approaches that are identifiable in relation tothe root of the ‘customary’ space; the sentimentalist, revisionist and legalpluralism approaches respectively. The following quick observation maybe made regarding ‘conception’; and ‘custom’ or ‘customary’:‘Conception’ is grounded in the concept-conception dichotomy thatDworkin discusses in relation to the ‘aim’ of law in a jurisdiction.46 Myemphasis is on conception as a product of interpretive, human agency.George states:

A concept must have an essential character or meaning if it is to survive in avariety of environments: there must be something about a concept that gives itcommunicative force as a linguistic term regardless of the cultural, social,legal or historical context it is used. Conceptions have a different nature. If theconcept is the generic form, the conception is the specific. The conception isthe way the concept is interpreted and/or implemented in a specificcontext.47

In relation to ‘custom’ or ‘customary’; the ordinary meaning of the rootword ‘custom’ is ‘a practice followed by people of a particular group orregion’ or ‘a habitual practice of a person’. In this sense, ‘custom’ issynonymous with ‘habit’.48 In law, ‘custom’ refers to ‘a common traditionor usage so long established that it has the force or validity of law’.49 Thefollowing characteristics are key to the designation of a phenomenon as‘custom’ or ‘customary’: it is a practice; it is ubiquitous to a (particular)people; and time determines its validity at law.

46 R Dworkin Law’s empire (1986) 90-96; and Dworkin (n 7 above) 134-136. 47 George (n 2 above) 805. 48 CT Onions The Oxford dictionary of English etymology (1966).49 B Garner & BA Garner (eds) Black’s law dictionary (2004).

62 Chapter 3

Turning to the approaches to the ‘customary’ space, they can besummed up as follows: The sentimentalist approach views the ‘customary’space with deference and reverence. This approach proceeds on the basisthat the ‘customary’ space is a pre-colonial repertoire of ‘norm’ withhistorical continuity.50 The revisionist approach looks at the ‘customary’space as a colonial invention with a historical specificity and whose corepurpose was to entrench colonial domination.51 The legal pluralismapproach advocates an understanding of the ‘customary’ space thatrequires the analysis of the lived reality of the ‘indigene’ society; wherebystate or ‘lawyers’’ ‘customary’ law may be recreated and re–interpreted toserve interests of the ‘indigene’ society.52 A discussion of the threeapproaches follows:

2.1.1 The sentimentalist approach to the ‘customary’ space

Under this approach, the nature of the ‘customary’ space, particularly itsnormative basis; and the extent of its survival, transformation andhistorical continuity, are often taken for granted. In relation to land,‘customary’ (land) tenure has a communitarian ethos. Peters has observedthat this communitarian ethos to ‘customary’ land tenure stemmed from apatronising, imperial attitude amongst the early colonial administratorsand missionaries who viewed ‘communal’ tenure as inferior to individual,private landholding that was pervasive, for example, under the Englishlandholding system.53 In the African context, once colonial rule gotentrenched, the communitarian ethos of ‘customary’ (land) tenure was‘profoundly shaped’ and often served the interests of the colonial state,private Europeans and an African elite comprising mostly of male, Africanchiefs and an emergent male-dominated entrepreneurial class.54 This

50 S Roberts ‘Some notes on the “African customary law”’ (1984) 28 Journal of AfricanLaw 1.

51 Roberts (n 50 above); F Snyder ‘Colonialism and legal form: The creation of“customary” law in Senegal’ in C Sumner (ed) Crime, justice and underdevelopment(1981) 90; F Snyder ‘Customary law and the economy’ (1984) 28 Journal of African Law34; P Fitzpatrick ‘Traditionalism and tradition law’ (1984) 28 Journal of African Law 20;A & RB Seidman ‘The political economy of the customary law in the former Britishterritories of Africa’ (1984) 28 Journal of African Law 44; M Chanock Law, custom andsocial order (1985); T Ranger ‘The invention of tradition in colonial Africa’ in EHobsbawm & T Ranger (eds) The invention of tradition (1983) 211-262; and MMamdani Citizen and subject: Contemporary Africa and the legacy of late colonialism (1996).See also C Ng’ong’ola Statutory control of land and the administration of agrarian policies inMalawi unpublished PhD thesis, University of London, 1983; and PE Peters‘Inequality and social conflict over land in Africa’ (2004) 4 Journal of Agrarian Change269.

52 F von Benda-Beckmann ‘Law out of context: A comment on the creation of traditionallaw discussion’ (1984) 28 Journal of African Law 28.

53 PE Peters ‘Challenges in land tenure and land reform in Africa: Anthropologicalcontributions’ (2009) 37 World Development 1317, 1317. On the patronising, imperialattitude: see Lord Lugard The dual mandate in British Tropical Africa (1965) 280 (theLugard thesis); and RWJ Swynnerton A plan to intensify the development of Africanagriculture in Kenya (1955) (the Swynnerton Plan).

54 Peters (n 53 above).

Conceptual issues and the land question 63

process of ‘shaping’ often led to a restatement of ‘customary’ law of acolony. In the case of Malawi, for instance, one finds a restatement ofcustomary land law under the Restatement of African Law Project thatwas done by the School of Oriental and African Studies of the Universityof London.55

Two points must be made here: The ascertainment of what the‘customary’ space is poses real methodological challenges because thesources are ‘suspect’ or simply do not exist.56 Critics of the approach haveargued that the ‘customary’ space has been misrepresented or indeed‘invented’ such that the emergent ‘distortion’ served a ‘purposivemanipulation’.57

2.1.2 The revisionist approach to the ‘customary’ space

The revisionist approach proceeds on the basis that the ‘customary’ spaceis a colonial construction under a scheme that involved the colonial stateand the African elite. Some of the most prolific proponents of thisapproach include Roberts, Snyder, Fitzpatrick, Chanock, Mamdani, Anneand Robert Seidman, and Ranger.58 These proponents have criticised thesentimentalist approach on the grounds that it reifies a normativecontinuity from pre-colonial to colonial (African) society; they also raisemethodological concerns relating to the ascertainment of the ‘norms’; andmore critically, they argue that the interface between the colonial ruler andthe male, African elite has produced that which has been called‘customary’ law and has been applied in the colonial, ‘native’ courts.59

They also argue that the violence occasioned by the incidence ofcolonialism in Africa, for example, entails that the erstwhile ‘acephalous’African groups were, in the words of Roberts, subjected to ‘discontinuities,abrupt transition and coercive domination’.60 Fitzpatrick and Snyder havegone on to argue that this ‘shaping’ is generally imbricated in the capitalistmode of production.61 Economic and political interests have greatlyinfluenced the interpretation and re-interpretation of the ‘customary’

55 The Project followed the London Conference on the Future of Law in Africa,December 1959-January 1960, and the Dar es Salaam Conference on Local Courtsand Customary Law in Africa, 1964: See JO Ibik Restatement of African law: Volume 4,Malawi II – The law of land, succession, movable property, agreements and civil wrongs (1971).

56 Roberts (n 50 above). See also D Henige ‘Oral tradition as a means of reconstructingthe past’ in JE Philips (ed) Writing African history (2005) 169.

57 Fitzpatrick (n 51 above).58 As above.59 Roberts (n 50 above). 60 Roberts (n 50 above) 3.61 Fitzpatrick; and Snyder, (both n 51 above); and Benda-Beckmann (n 52 above).

64 Chapter 3

space.62 The ‘myth’ of the ‘customary’ space, it has been argued, was anecessary ‘totem’ for colonial capitalism to flourish.63

The critics of the revisionist approach contend that the approach doesnot make a distinction between the ‘customary’ space as applied by thecolonial state apparatus or that ‘retrieved’ by Africanist scholars on the onehand and the ‘customary’ space that is lived by the ‘indigenous’ (African)society itself. Benda-Beckmann has raised another distinction in relation tothe treatment of the ‘customary’ space. He has argued that a distinctionmust be made between created ‘customary’ law that found its way into thestate legal system and a ‘customary’ law (that is, a normative system of apeople) that remained outside the influence and confines of the state legalsystem. He has contended that the revisionist approach to the customaryspace conflates this important distinction.64 While this distinction may bemade, in my view, the colonial influences also permeate the ‘non-state’system through, for example, the role of chiefs in colonial publicadministration.65

2.1.3 The legal pluralism approach to the ‘customary’ space

The reiteration to be made here is that this approach advocates that in thedelineation of the ‘customary’ space, the focus must be on the ‘lived’ realityof the ‘indigene’ society.66 In relation to land relations, the scholarship onthe legal pluralism approach has shown that African societies often had‘multiple types of authority’ and equally ‘multiple sets of claims overland’.67 The scholarship here has increasingly argued that African societyhad individualised forms of land ownership including rentals and sales.68

A number of observations must be made: First, if there is an area of(African) society that has had the most intrusion from the colonial andstate legal system it is the erstwhile land relations of indigenous (African)society. The distinction that Benda-Beckmann makes above is critical. I

62 Fitzpatrick; and Snyder (both n 51 above).63 Cf P Fitzpatrick The mythology of modern law (1992) 150; P Fitzpatrick Modernism and

grounds of law (2001); and A Paliwala ‘Irresolutions of modernity, law, nation andempire: A reading of Fitzpatrick’s Modernism and the grounds of law in conjunction withHardt and Negri’s Empire’ (2003) 1 Law, Social Justice & Global Development Journalavailable at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/paliwala/(accessed 12 November 2011).

64 Benda-Beckmann (n 52 above) 30.65 Mamdani (n 51 above).66 Benda-Beckmann (n 53 above); M Gluckman The ideas in Barotse jurisprudence (1965)

cited in Peters (n 53 above).67 Peters (n 53 above). Other scholars criticise mainstream land reform discourse for

adopting a linear evolution of ‘customary’ law to ‘formal’ law: A Manji ‘Legalparadigms in contemporary land reform’ (2006) 44 Commonwealth & ComparativePolitics 151. She argues for a ‘legal-pluralist outlook’ of legal relations because in landreform ‘informal land tenure plays an important part in everyday life, in some casesbeneath a thin veneer of state law’: Manji (in this note) 163.

68 Peters (n 53 above) 1318.

Conceptual issues and the land question 65

will argue here that notions of so-called ‘customary’ land law are in effectelements of statutory land law. Hence, the rhetoric of a continuedcommunitarian ethos is not only flawed, it also serves a political purposewhich in the postcolony inculcates the interests of the ‘ruling class’. In thecase of Malawi, this network of the ruling class includes a coterie of theagents of the Bretton Woods Institutions, the state, and the Achikumbe.Further, in the Malawi context, Ng’ong’ola has observed that theconstruction of the communitarian ethos of the ‘customary’ space oftenstemmed from a ‘false oral tradition’ that advocates a certain ‘seniority’ infavour of a local elite.69

2.1.4 Reconciling the three approaches

Going forward, I find the revisionist approach to the ‘customary’ spacecompelling and useful for the analysis of the land question under the on-going land reform in Malawi. This is the case because the colonialencounter often entailed that newly colonised territories were treated as resnullius – land without an owner. Res nullius is rooted in the feudal notionsof imperium – acquisition of a ‘territory’ – and dominium – acquisition of theland in the territory.70 The acquisition of colonial sovereignty implied thata new sovereign owned the land under the principle of eminent domain –dominium eminens – and determine the applicable law. In Malawi, theacquisition of eminent domain under colonial sovereignty was under aproclamation. It is this proclamation that transmogrified ‘native title’.71

In the Anglophone colony, the applicable law was the Englishcommon law and other ‘laws’ applied after passing through the prism ofnon-repugnance clauses framed in such language as ‘justice and morality’or ‘natural justice, equity and good conscience’. Hence in the emergentcolonial legal system, the ‘legal reality’ was that there was always one‘system’ of law – the ‘statutory’ – with an appendage called the‘customary’.72 In any event, if the etymology of ‘custom’ is anything to goby, what has emerged as the ‘customary’ space from colonialism is, Isuggest, a misnomer. In light of the arguments from the revisionistapproach which I adopt here; there is no ubiquitous, timeless practice inproperty relations in the African postcolony that can be attributed to thepre-colonial practices of ‘indigene’ African society.

69 Ng’ong’ola (n 51 above) 62.70 K Roberts-Wray Commonwealth and colonial law (1966) 625-636; and P McAuslan

‘Legal pluralism as a policy option: Is it desirable, is it doable?’ UNDP-InternationalLand Coalition Workshop: Land rights for African development: From knowledge to actionNairobi 31 October-3 November 2005 (Proceedings: http://www.undp.org/drylands/lt-workshop-11-05.htm (accessed 23 May 2011)).

71 See Chapter 1, n 19 above.72 P McAuslan Bringing the law back in: Essays in land, law and development (2003) 7-8. On

the doctrine of repugnancy: TO Elias British colonial law: A comparative study of theinteraction between English and local laws in British dependencies (1962).

66 Chapter 3

A final point to be made here is that the sentimentalist and legalpluralism approaches are complementary. In this case, it is perilous todifferentiate an ‘understanding’ of the ‘customary’ space that has beenpassed down generations of state agents or intra-community from the‘lived’ reality of the ‘indigene’ society.73 In any event, reality is a mosaicthat is subjective and, amongst other things, it is prone to the complexitiesof perception, depth of knowledge, and interpretation.74 Hence, to theextent that ‘reality’ – as lived or otherwise – is prone to construction, thelegal pluralism approach to the ‘customary’ space is tenuous. However,beyond the legal ‘capture’, under a process of hegemonic responsibilisationnew power relations may arise which subordinate both the state and ‘non-state’ spaces.75

2.2 The nature of ‘customary’ (land) tenure

Following from the discussion of the root of the ‘customary’ spacegenerally, the central argument here is that a conception of ‘customary’(land) tenure – with a communitarian ethos – as distinct from statutory(land) tenure – with a private, exclusive ethos – needs unpacking. Landtenure entails the nature of landholding. A clear understanding of landtenure is pertinent as it informs the direction of its reform. The coloniallegacy in Africa trail blazed a dualist land tenure system often sharplycontrasted as ‘statutory’ and ‘customary’. The worldview here is that‘statutory’ tenure is based on a liberal legal order and a right holder has thepower to fully transfer or sale the interest in land in favour of anotherperson.76 The anti-thesis is that under ‘customary’ tenure while the interestin land is supposedly transferable, it is not saleable.

In the same way that the ‘customary’ space is a colonial construction,the same can be said of ‘customary’ tenure. In the Anglophone Africancolony, the conception of the so-called ‘customary’ tenure under acommunitarian ethos and the attribution of the rights in land – the usufruct– to a chief served a critical political function. The role of a chief under‘customary’ tenure was the basis of indirect rule as a system of control bythe colonial Sovereign in the countryside. The discussion of the nature of‘customary’ tenure looks at the ‘juridical’ construction of ‘customary’tenure and the discourse arising from the Australian case of Mabo vQueensland (No 2).77

73 Snyder (n 51 above).74 H Bless Social cognition: How individuals construct social reality (2004); and P Bourdieu In

other words: Essays towards a reflexive sociology (1990). 75 See the discussion in Chapters 5 and 6.76 Mamdani (n 51 above).77 (1992) 175 Commonwealth Law Reports 1 (Mabo).

Conceptual issues and the land question 67

2.2.1 The ‘juridical’ construction of ‘customary’ (land) tenure

In the British Empire, the juridical construction of ‘customary’ tenureoccurred in the judiciary as well as the colony’s legislature. In the case ofthe judiciary, the construction occurred both at the level of the colony andat the centre of Empire through the Privy Council. This judicial andlegislative intervention was complemented by the institution of a chiefwhose role was often legitimised under statute. The combined effect of thejudicial and legislative intervention and the role of the chief meant that‘customary’ tenure assumed the force of law. Below are the interventions:

‘Customary’ (land) tenure in court

In the British Empire, three early 20th Century CE decisions set the pacefor the construction of the so-called ‘customary’ tenure. These decisionsare Nireaha Tamaki v Baker,78 In Re Rhodesia79 and Amodu Tijani v TheSecretary, Southern Nigeria.80 The principle that has emerged from thesecases is that ‘customary’ tenure – or precisely, ‘native title’ – is dependenton an act of annexation or cession followed by proclamation of a colonialsovereignty. Hence, ‘customary’ tenure is transmogrified from the radicaltitle of the colonial sovereign. The comprehension of the so-called‘customary’ tenure by the colonial judiciary shows a patronisingundertone. In In Re Rhodesia, Lord Davey in delivering the judgement ofthe Privy Council states:

It seems to be common ground that the ownership of the lands was ‘tribal’ or‘communal’ but what precisely that means remains to be ascertained.

...

The estimation of the rights of the aboriginal tribes is inherently difficult.Some tribes are so low in the scale of social organisation that their usages andconceptions of rights and duties are not to be reconciled with the institutionsor legal ideas of civilised society. Such a gulf cannot be bridged. It would beidle to impute to such people some shadow of the rights known to our lawsand then to transmute it into the substance of transferable rights of property aswe know them.81

This propensity towards ‘othering’ the nature of ‘customary’ tenure almostautomatically led to Viscount Haldane in Amodu Tijani declaring thatnative title in land (at least in the British Empire) was a usufructuaryright.82 The Viscount went on to state that the title lay in the community

78 [1901] AC 561 (Nireaha Tamaki).79 [1919] AC 211.80 [1921] 2 AC 399 (Amodu Tijani).81 Pages 233-234 of the judgment. See also R v Earle of Crewe ex parte Sekgome [1910] 2 KB

526; Sobhuza II v Miller [1926] AC 518; and Nyali v Attorney General [1955] 1 QB 1.82 Page 403 of the judgment.

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and the chief often held a ‘fiduciary’ role akin to a trustee.83 Heacknowledged, however, that the enjoyment of the right to possessionrequired a close study of the history of the particular community.84 Theterms of the annexation or cession also determined the precise nature of the‘customary’ tenure.85

Once the nature of the ‘customary’ tenure was proscribed ascommunitarian and the chief was a repository of the usufruct, it thenbecame, in my view, the juridical fortress of the divisive indirect rule in theAnglophone colony.86 This construction, as hinted at earlier, has hadimplications for the nature of the development of colonial capitalism. Thiswas part of the ideology of colonial domination.87

In the same way, there are varied approaches to the ‘customary’ space;the nature of ‘customary’ tenure has polarised scholarship in the academy.Beyond Nireaha Tamaki, In Re Rhodesia and Amodu Tijani, the works byAfrican scholars such as Elias88 and Africanist scholars such as Allott hasentrenched the communitarian ethos of ‘customary’ tenure. There arehowever two schools to the communitarian ethos of ‘customary’ tenure:First, there are those who argue that pre-colonial African society precludenotions of individual ownership of property. The principle in NireahaTamaki, In Re Rhodesia and Amodu Tijani is endorsed as a correct‘crystallisation’ of the law.89 The second school, and directly opposed tothe first, is that ‘customary’ tenure was only communitarian prior to theallocation of a piece of land in favour of a particular family. Uponallocation of a piece of land in favour of a family, that family acquired allrights in that piece of land exclusive of all members of that community.90

The precise content of the individualised rights is less clear.91 Thepolarisation brings to the fore Berger and Luckmann’s observation that‘reality’ once constructed often it is defended by the constructor and non-constructor alike.

On the communitarian ethos of ‘customary’ land tenure, Ng’ong’olastates:

83 Pages 403–404 of the judgment.84 Page 404 of the judgment.85 Page 410 of the judgment.86 Mamdani has referred to this state of affairs as ‘decentralised despotism’: Mamdani (n

51 above). See also the Lugard thesis and the Swynnerton Plan (n 53 above).87 Snyder (n 51 above).88 TO Elias Nigerian land law (1971) and AN Allott The Ashanti law of property (1966) cited

in K Akuffo ‘The conception of land ownership in African customary law and itsimplications for development’ (2009) 17 African Journal of International and ComparativeLaw 57.

89 Akuffo (n 88 above).90 Mamdani (n 51 above) 139-140; Kamchedzera (n 23 above); J Nankumba ‘Customary

land tenure and rural development: The case of Lilongwe ADD’ (1986) 13 University ofMalawi Journal of Social Science 57; and Okoth-Ogendo, and Cousins (both n 40 above)68.

91 Akuffo (n 88 above) 69.

Conceptual issues and the land question 69

[I]t is incorrect to ascribe land rights to communities or groups identified as‘tribes’ or ‘clans’. These are now ubiquitous linguistic and cultural clusters oflittle relevance to land tenure. The ‘village’ occupied by persons belonging todifferent tribes in some cases, is the social and geographical unit within whichland rights are exercised. But even here, the village ‘community’ may enjoyrights of user as a group only in unallocated land or public land. Individualsor families may enjoy exclusive and uninterrupted use of allocated gardens. Asweeping statement that land belongs to the community and never to theindividual obscures the varying interests which groups and individuals canenjoy in different land categories.92

Beyond Ng’ong’ola, Chanock has also advanced a compelling case inrelation to ‘customary’ tenure.93 The nature of ‘customary’ tenure cannotbe divorced from the root of the ‘customary’ space. In this respect, attemptsto locate ‘customary’ tenure in a pre-colonial or postcolonial society is toignore the fact that land relations were most aggressively modified andsubsumed under a colonial legal system. Chanock has argued in relation tothe ‘customary’ space generally that it is a product of a three-tiered processof ‘legal mythology’ that has involved the nature of ‘British functionalistanthropology’ which presented ‘traditional’ legal systems as ‘extant’ andtended to downplay any ‘elements of conflict’ or contradiction; the role ofa ‘neo-traditionalist African scholarship’ which has nurtured the idea of a‘surviving African customary law’; and a value-added ‘African legalheritage’ that has emerged without a ‘history’.94

Hence, in the context of this mythologisation of the ‘customary’ space,Chanock has buttressed the revisionist approach to the nature of the‘customary’ space (and by extension ‘customary’ tenure). Using evidencefrom Anglophone Africa, he contends:

The law was the cutting edge of colonialism, an instrument of the power of analien state and part of the process of coercion. And it also came to be a newway of conceptualising relationships and powers and a weapon withinAfrican communities which were interpreted and fought over by thoseinvolved in moral terms. The customary law, far from being a survival, wascreated by these changes and conflicts. It cannot be understood outside of thepeculiar institutional setting in which its creation takes place. African legalconceptions, strategies and tactics are formed both by the impact of capitalismand by the interaction of the communities thus affected with the concepts,strategies and power of British colonial legal institutions.95

And in respect of the ‘non-statutory’ and ‘non-English’ parts of law appliedin colonial and postcolonial courts which have been appropriated as‘customary law’, Chanock makes the following comment:

92 Ng’ong’ola (n 51 above) 87–88. 93 Chanock (n 51 above).94 Chanock (n 51 above) 3-10; especially 3 and 4.95 Chanock (n 51 above) 4.

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[I]f we look at how the customary law came into being, resting anAfricanising strategy upon it can look a little odd. It is not simply thatcustomary law has changed in both content and form during the colonialperiod. It is that the circumstances of its development made it a part of anidealisation of the past developed as an attempt to cope with socialdislocation. It was defensive in spirit, defensive not only against British rulersbut against those Africans whose growing involvement in wage labour andmarket agriculture was leading them towards different interpretations ofobligations and properties.96

The following therefore could not have been more poignant fromChanock:

In stressing that customary law is not customary I cannot claim to have madea particularly startling discovery […] [I]t was a part of a process oflegalisation, of a transformation in African institutions rather than acontinuity.97

Legislative intervention and the role of chiefs

The communitarian ethos of ‘customary’ tenure is equally dependent onthe chief – the traditional authority – for its optimal functionality. For it isin the chief that the usufruct is vested. The institution of chiefs has beenproblematic in the African colony and postcolony; particularly in thecontext of land relations. Whether a chieftaincy predates colonialism or itis its blatant creation, the charge against the African chiefs is that they havebeen ‘appropriated’ for a multiplicity of aims, including repression and the‘ordering’ of society into ‘citizens’ and ‘subjects’.98 The preoccupationwith chiefs arises from a basic tactic. Peters states:

[C]olonial rulers confused territoriality with sovereignty, and conflatedAfrican ritual roles, whose authority lay in rain-making or fertility of the land,with political roles exerting authority over people in lineage, clan orchiefdom. Where the colonial rulers could not identify an appropriate ‘chief ’,they created one.99

The African colonial and state has legislation for the regulation ofchieftaincy through appointments, dismissals, promotions, andsuspensions. Mamdani makes a forceful account of decentraliseddespotism under the British colonial model where the chiefs played a

96 Chanock (above).97 Chanock (n 51 above) 4; and Roberts-Wray (n 70 above).98 Mamdani (n 51 above); Peters (n 51 above); and F Nyamnjoh ‘Chieftaincy and the

negotiation of might and right in Botswana democracy’ (2003) 21 Journal ofContemporary African Studies 233. On the tendency to conflate ‘political power’ and‘power over property’: Ng’ong’ola (n 51 above) 58-64.

99 Peters (n 51 above) 272.

Conceptual issues and the land question 71

crucial role in ‘pacifying’ the countryside.100 Indeed in Malawi, forexample, chiefs were ‘reined in’ under the Native Authority Ordinance of1913 and the Native Courts Ordinance of 1914. The incorporation ofexisting chieftaincies and the creation of chieftaincies where none existedraise legitimacy problems. This is particularly the case from the perspectiveof the ‘beneficiaries’ of land given the fact that the chiefs are the supposedholders of the usufruct under ‘customary’ tenure.

The Mabo discourse

Nireaha Tamaki, In Re Rhodesia and Amodu Tijani tacitly entrenched theprinciple of terra nullius.101 This is the case because the decisions suggestthat the basic presumption is that a proclamation of colonial sovereigntysuperseded all rights or interests in land. The survival of the rights orinterests in land of an ‘indigene’ society turned on the interpretation of theterms of annexation or cession. In the African context, Amodu Tijani heldthat, if anything, the ‘indigene’ society had a usufruct.

Mabo, in many respects is consistent with Nireaha Tamaki, In ReRhodesia and Amodu Tijani. However, Mabo is radical in the way itenunciated the following principles: the original right in land of an‘indigene’ society is not extinguished by mere lack of recognition by a newsovereign. Second, the original right of the ‘indigene’ society isextinguished by specific government action through a grant of land infreehold or other limitation set down under statute. Third, and subject tothe previous two principles, the colonial sovereign did not acquire eminentdomain that extinguished original interests in land; the acquisition was byvirtue of sovereignty and not by virtue of property.

Since then, Mabo has been followed, for instance, in Wik vQueensland;102 Transvaal Agricultural Union v Minister of Land Affairs;103 andAlexkor Limited v The Richtersveld Communities.104 However, Mabo, Wik,Transvaal Agricultural Union and Richtersveld must be understood in theirproper context when considered outside the realm of Australia and South

100 Mamdani (n 51 above) and R Muriaas ‘Local perspectives on the “neutrality” oftraditional authorities in Malawi, South Africa and Uganda’ (2009) 47 Commonwealth& Comparative Politics 28.

101 It is a principle of international law that generally effective control and occupation of aterritory is a basis for recognising the sovereignty of another state over territory:M Shaw International law (2003). Shaw suggests that European colonial powers exertedtheir sovereignty in Africa through cession. He rejects the concept that Africa wastreated as terra nullius: M Shaw Title to territory in Africa: International legal issues (1986)31-33, 38. The way the rights of the indigenous societies were ignored during thecolonial encounter reveals a patronising and hegemonic interpretation of the principleof terra nullius. McAuslan has aptly described the colonial encounter as ‘governmentsanctioned land grabbings’: McAuslan (n 72 above) 3.

102 (1997) 187 Commonwealth Law Reports 1 (Wik).103 1997 (2) SA 621 (Transvaal Agricultural Union).104 2004 (5) SA 460 (CC) (Richtersveld).

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Africa. Having said that, in the case of the Anglophone colony,notwithstanding the sentiments in Amodu Tijani, the original right wasextinguished by a specific government action.105 In fact, the addedsignificance of Transvaal Agriculture Union and Richtersveld is thatsubsequent government action can reverse prior government action thatdeprived the right to land to a people. For example, in the South Africanscenario, the prior government action through the Native Land Act 27 of1913 (which deprived the right to land to largely non–white communities)was reversed by the subsequent state action under section 25 of theConstitution of South Africa as endorsed by the Constitutional Court ofSouth Africa in these ground breaking cases.

In the context of the nature of the nature of ‘customary’ tenure, theMabo discourse is important because if a process of ‘government action’has led to the construction of the ‘reality’ known as ‘customary’ tenure, itis possible under the same process to enable the deconstruction of this‘reality’. In other words, if state agency is at the centre of an understandingof ‘customary’ tenure as a colonial construction, the same form of agencycan facilitate its de–bunking.106

3 The beneficial interest in land: ‘Customary land’ under the Malawian Land Act107

So far, the discussion of the right to land as a part of the right to propertyas a social relation has shown the construction of the ‘customary’ spaceand ‘customary’ tenure under a scheme meant to buttress colonialcapitalism. The scheme and indeed the conception of the statutory-‘customary’ dichotomy were premised on the Lockean labour theory ofproperty or appropriation. While under the scheme, the so-called‘customary’ space and ‘customary’ tenure was the anti-thesis, it is myargument that in view of the revisionist approach to the ‘customary’ space,the nature of the ‘customary’ space generally and ‘customary’ tenure inparticular, ought to be more nuanced for analytical purposes. This is evenmore important when examined in the context of the resolution of a landquestion in political economies such as Malawi.

In the context of land ownership, the proponents of the four attributesof property – nominal title, control, benefit, management – point out thatdifferent persons may have rights accruing to different attributes to

105 See for example the issuance of Certificates of Claim in Malawi by the Colonial Statein 1902: BS Krishnamurthy ‘Economic policy, land and labour in Nyasaland’ inB Pachai (ed) The early history of Malawi (1972) 384-404.

106 For a pessimistic view: H Mostert & P Fitzpatrick ‘Law against law: Indigenous rightsand the Richtersveld cases’ (2004) 2 Law, Social Justice & Global Development Journalavailable at http://www.go.warwick.ac.uk/elj/lgd/2004_2/mostertfitzpatrick(accessed 25 January 2010).

107 Cap. 57:01, Laws of Malawi.

Conceptual issues and the land question 73

property. This tiered accrual of rights should not automatically lead to theconclusion often reached in land reform discourse that there is a statutory-‘customary’ dichotomy; and further that the ‘customary’ space or‘customary’ tenure has a communitarian ethos. Kamchedzera has argued,in the case of Malawi, that the ‘wrong conception’ of the nature of‘customary’ tenure has had negative implications for (the much wider)agrarian reform in the country.108

The query arises: What is the nature, if at all, of ‘customary’ tenure? Ilocate the response to this query through a discussion of ‘customary’ tenureand customary land under the Land Act. In this vein, I, first, examine thenature of the beneficial interest: Beneficial interest is more refined in equitythan in law. In equity, the beneficial interest is the interest of value, worthor use of property that a person does not own at law.109 For my purposes,a beneficial interest must be considered in the context of a fiduciaryrelationship if it is to add value at all in land reform. A fiduciaryrelationship may be broadly understood as ‘a relationship of confidence inwhich equity imposes a duty upon a person in whom confidence is reposedin order to prevent abuse of that confidence’.110 Under a fiduciaryrelationship, a beneficiary has a proprietary right of claim against anotherperson except a bona fide purchaser of a legal estate for value. A fiduciaryrelationship is routinely construed strictly to curb fraud.111 What underliesa fiduciary relationship is trust. Trust bears confidence (in some ‘entity’ or‘being’). Trust or confidence connotes responsibility. Responsibility isoften described as the ‘state of being responsible’.112 This suggests thatthere is a benchmark that measures this state. In light of people-generatedresponsibilisation set out in Chapters 1 and 2, the beneficial interest in landmust be understood in the context of a responsibilised state.

The nature of the beneficial interest necessitates a discussion of theconception of ‘customary land’ under the Land Act. ‘Customary land’ isdefined as ‘all land held, occupied or used under customary law, but doesnot include any public land.’113 Notwithstanding the reference to acategory of land known as ‘customary land’ under the Land Act, thecumulative effect of the powers reposed in the Minister under the Act asan agent of the state should logically lead to the conclusion that ‘customaryland’ under the Land Act in Malawi is a phantasm and a majority of thepopulation in the country have interests similar to tenancies at will. Thisis the reasoning: ‘Customary land’ under the Land Act is supposedly the‘undoubted property of the people of Malawi’, and further that the land

108 Kamchedzera (n 23 above) 190,192-194. 109 G Watt Trusts and equity (2008) and K & S Gray Elements of land law (2009).110 Watt (above); Gray & Gray (above); and RP Meagher et al Equity: Doctrine and remedies

(1975) 107.111 Watt; Gray & Gray (both n 109 above); and Meagher et al (n 110 above).112 Onions (n 3 above) Chap 1.113 Sec 2 of the Land Act.

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vests in ‘perpetuity in the President’.114 Hence, the legal title in ‘customaryland’ does not vest in the people of Malawi; it vests in the President as asymbol of the state. The vesting here suggests the creation of a trust. Thenature of the trust is not clarified under the Act. Its creation is at bestdeclaratory only. If the reference to the ‘people of Malawi’ is meant to givecertainty to the objects of the trust, the rights of the objects – the people ofMalawi – are not clarified either under the Act. In this respect, thisamounts to a ‘political trust’ or, in the words of Vice Chancellor Megarry,a ‘trust in the higher sense’.115 In this way, it only creates a governmentobligation which is unenforceable in a court of law.116

Hence, the declaration that customary land is the undoubted propertyof the people of Malawi is one of principle without any legal significanceunder the Land Act.117 Section 5 of the Land Act does not grant the peopleof Malawi any enforceable right at law. The people of Malawi only havethe right of use and occupancy over ‘customary land’.118 The state haspowers to dispose of ‘customary land’ as private land under leasehold;119

and may also declare ‘customary land’ as public land120 in which case it ispossible for the land to be converted into freehold.121 In sum, section 25 ofthe Land Act creates a political trust over ‘customary land’ where thePresident is a trustee of the people of Malawi in a symbolic sense.122

The reference to the people of Malawi under the Land Act is not areference to legal owners. It is a reference akin to tenants at will with abeneficial interest based on their right to use or occupancy of the land.Hence, it is useful for analysis to construe a constitutionally-based,‘fiduciary’ relationship between the state and the people of Malawi forpurposes of land reform under section 12 of the Constitution of Malawi.The core duty of the state under this ‘fiduciary’ relationship is to guaranteeaccess to available arable land that serves as a meaningful benchmark fordignified living on the part of the land deprived. Indeed, the referenceunder section 25 of the Land Act demonstrates that the legal ownership ofthe occupants of parcels of land classified as ‘customary land’ is, in fact,mythologised. A sole focus on the law in order to determine the quality oftenure of these occupants is – at once – unhelpful. This then necessitates a

114 Section 25 of the Land Act. At common law, the tenancy at will may be terminated bymere notice. Under section 10 of the Lands Acquisition Act, ‘fair compensation’ forexpropriated land is not based on the value of land or other factors such as loss ofbusiness, goodwill etc. This fortifies my view that occupants of ‘customary’ land are infact akin to tenants at will. This is the sense in which ‘tenancy at will’ or ‘tenant at will’is used in this book.

115 Tito & Others v Waddell & Others (No 2) [1977] 1 Ch 106 (Tito v Waddell (No 2)) 216.116 Tito v Waddell (No 2) (above).117 M Msisha ‘Land law in Malawi’ in Government of Malawi The final report of the

Presidential Commission of Inquiry on Land Policy Reform, Volume III (1999) 30-31.118 Section 26 of the Land Act.119 Section 5 of the Land Act.120 Section 27 of the Land Act.121 Section 38 of the Land Act.122 Tito v Waddell (No 2) (n 116 above); and Msisha (n 117 above) 32.

Conceptual issues and the land question 75

deeper analysis of the quality of the tenure of these occupants under aframework of a right to property as a social relation. I delve into thisanalysis in Chapter 4.

4 Final word

In this Chapter, I set out to provide an understanding of the conception ofthe right to land through the nature of a ‘right’ and ‘property’ under theframework of a right to property as a social relation. The discussion hasrevealed that the right to land is dominated by liberal discourse which islocated in the Lockean labour theory of property or appropriation. Thisconception is grounded in the de-abstraction approach to rights discoursewhere history and context are irrelevant for the analysis of socialphenomenon.

The liberal tilt of the right to property in land serves a critical functionin a political economy tradition that lauds the efficacy of the market.Building from Chapter 1, I have reiterated the contention that the marketis the value that underlies hegemonic responsibilisation. This tilt isnecessary for the responsibilisation of the individual as homo economicus tosustain a particular form of land relations. There are land owners and theland deprived who in the scheme of things under the Foucauldianphenomenon of scarcity serve a particular ‘convenient end’ in the politicaleconomy.123

I have also argued that the framework of a right to property as a socialrelation is useful in understanding the subjective historical and contextualspecificities that define the conception of property, let alone the right toland, in a country. The emphasis here is on the awareness of the socialprocesses that produce (social) reality. This social constructionist approachis pertinent in the understanding of the ‘customary’ space and ‘customary’tenure. The ‘customary’ space (and ‘customary’ land tenure) is a productof a colonial construction that served a particular colonial agenda; whichin the case of Malawi was a plantation agriculture economy. Thedelineation of ‘customary’ tenure guaranteed a dual role of skewed landrelations and the ‘pacification’ in the colony and the postcolony.

In countering the sentimentalist and legal pluralism approaches to the‘customary’ space, one of the points worth repeating here is that landrelations in the colony and postcolony have been aggressively subsumedunder a state legal system. ‘Customary’ land tenure – even as a colonialconstruct – is validated under statutory law. I suggest that it is a misnomerto talk of ‘customary’ land law because there is always a single statutoryland law regime. One thing that emerges from Nireaha Tamaki, In Re

123 M Foucault Power/knowledge: Selected interviews and other writings, 1972-1977 edC Gordon and trans C Gordon et al (1980).

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Rhodesia, Amodu Tijani and what I have called the Mabo discourse is thatthe recognition and validation of ‘native title’ was through theacknowledgement of the radical title of the state sovereign. However, apositive aspect that emerges from the Mabo discourse, particularly theSouth African cases of Transvaal Agriculture Union and Richtersveld is thatstate action can serve an ‘emancipatory’ role in favour of the land deprived.Indeed, the fleeting discussion of ‘customary’ tenure under the Land Actdemonstrates that a significant proportion of the population in Malawihave interests in land akin to tenants at will.

Finally, under a framework based on the right to property as a socialrelation, the analysis of ‘property’ is de-abstracted and contextualised. Theemphasis is on the intricate interaction of persons and the construction anddeconstruction of the individual for a defined and responsibilised role in apolitical economy. In Chapter 4, I examine the global-local interventionsthat engender this responsibilisation. Is there a nascent, imperial ‘global’state? Are we witnessing the emergence of ‘sub-national authorities’ thatfavour a transnational, capitalist class? In response to the query, I look atthe global-local macroeconomic linkage and examine the extent to whichit enhances or undermines the resolution of the land question in Malawi. Ialso analyse the ‘situations’ and ‘processes’ underlying the adoption of theNational Land Policy; the Presidential Commission of Inquiry on LandPolicy Reform; the land utilisation studies that were conducted between1995 and 1998; the review of ‘land-related’ laws by the Malawi LawCommission; and the adoption of the Green Belt Initiative in 2009.

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This is the story so far: In the consideration of the land question in Malawi,a governmentality-responsibilisation analysis seeks to reveal that the oftenautomatic transition from land reform to land law reform is misplacedbecause law is only one in a range of disciplining tactics which includespolicy frameworks, codes of conduct, standards, guidelines and proposalsfor reform. All these tactics thrive under what I call hegemonicresponsibilisation. Indeed, the governmentality-responsibilisation analysisprovides the basis for the examination of the proposition that market-basedland reform leads to the sustained emergence of a constituency of the landowner as the ‘efficient’ producer and a constituency of the land deprived ascheap wage labour and, as inchoate producers.

Second, the implementation of market-based land reform models isbeset by three issues: the preferential treatment of land owners in the estatesector; particularly under the land redistribution model based on a willingseller/willing buyer approach has led to the conclusion that the modelamounts to a seller’s market. Second, the lack of post-redistributionsupport services has meant that land distributed to the land deprived isamenable to distress sales. Third, the nature of programme financingdisfavours weak economies such as Malawi since the implementation ofthe models requires heavy capitalisation which, in the case of those weakeconomies, often is only possible through external capital from institutionssuch as the Bretton Woods Institutions. In the end, the combined effect ofthe three issues epitomises the process of hegemonic responsibilisation ofthe land deprived as a source of cheap wage labour and, as inchoateproducers.

Third, in Chapter 3, I acknowledge the dominance of the liberalconception of the right to property in land in property discourse. Thisdominance has meant that there is a pre-occupation with the homoeconomicus in land reform discourse and the supremacy of market as valuerooted as it is in a Hayekian catallaxy. Second, the dominance has led to amisplaced obsession with the reform of the ‘customary’ space. I argue that

4CHAPTER GLOBAL-LOCAL

POLICY LINKAGE,RESPONSIBILISATION AND

THE LAND QUESTION

78 Chapter 4

this obsession has, in fact, contributed to the irresolution of the landquestion in weak economies such as Malawi. I contend that the conceptionof the right to property in land as a social relation accounts for history andcontext, and focuses on the ‘technologies of normalisation’ that shape andre-shape the land question in weak economies such as Malawi.

In this Chapter, I look at the global-local policy linkage throughexamining the World Bank’s Land Policy, and poverty reduction strategiessuch as the Medium Term Expenditure Framework (MTEF) and theirimplication for national macroeconomic strategies that coalesce under theMalawi Growth and Development Strategy II as they relate to theresolution of the land question. There are two limbs to the centralargument in this Chapter: First, the nature of the frameworks developed bythe Bretton Woods Institutions as blueprints for weak economies such asMalawi gridlock any meaningful esoteric policy development at the localspace. In the context of the land question in Malawi, the state mustimplement a market-based land reform framework that has beenprescribed by the Bretton Woods Institutions. This gridlock is a feature ofhegemonic responsibilisation and has undermined the resolution of theland question in the country. Second, there is a lack of law and policysynergy amongst the interventions developed by the state to resolve theland question in the country.

1 Global-local policy linkage

In the examination of the relationship of the state and the Bretton WoodsInstitutions, it is useful to consider the influences that the global space hashad on the policy framework at the local Malawian space. In this respect,when one looks at the various macroeconomic frameworks that have beendeveloped in Malawi, it becomes clearer how inevitable it is that landreform in the country has been market-based.

I discuss the World Bank’s Land Policy and its influence on the natureof Malawi’s Land Policy. The context within which the variousframeworks for Malawi emerge is narrow and concretised in light of therequirement, as it were, to ensure consistency with the frameworksdesigned by the Bretton Woods Institutions, particularly the World Bankand the International Monetary Fund.

Further, since the mid-1990s, Malawi’s macroeconomic frameworkhas been formulated in the context of the poverty reduction strategiespromoted by the Bretton Woods Institutions.1 In this regard, it is pertinent

1 In December, 1999, the Boards of the World Bank and the International MonetaryFund approved poverty reduction strategies as the basis of all World Bank and IMFconcessional lending and for debt relief under the enhanced Heavily Indebted PoorCountries (HIPC) Initiative. The terminology ‘poverty reduction strategy’ refers to the

Global-local policy linkage, responsibilisation and the land question 79

to consider the poverty reduction strategy in Malawi and examine theextent to which it has shaped the direction of the country’s land reform.Three documents are worth consideration; the Poverty Reduction StrategyPaper which ran between 1999 and 2004; the Malawi Growth andDevelopment Strategy which ran from 2005 to 2011; and the MalawiGrowth and Development Strategy II which runs from 2011 to 2016.These documents are the constitutive parts of the macroeconomicframework in the country and are considered simultaneously as a site ofconformity.

1.1 The World Bank’s land policy framework, 2003

Malawi’s implementation strategy to enhance agricultural policy resonateswith the World Bank approach to land reform where the landredistribution model based on a willing seller/willing buyer approach ispromoted as the benchmark for land reform. In 2003, the Land PolicyDivision of the World Bank commissioned a blueprint on land policyframeworks.2 The World Bank’s land policy framework of 2003 emergesin the shadow of the Land Reform Policy Paper, 1975 and two key draftreports; the Land institutions and land policy and the Land policy for pro-poordevelopment, both of 2002, where it was recognised that land reform playsa key role in the wider macroeconomic framework in promoting economicgrowth and good governance.3 This recognition jolted the Bank into takinga leading role in setting the policy agenda in land reform. The recognitionculminated, as it were, in the land policy framework of 2003.4 The landpolicy framework of the 2003 advocates a supposedly ‘human-centredapproach’ to land reform. In this respect, the Division contends that thereis need for ‘secure property rights’ where there is legal recognition of‘customary’ tenure systems.5 The Division makes this conclusionfollowing findings that there is no empirical evidence between individualtitle and economic growth.6 The Division recognises a ‘bundle of propertyrights’ which may comprise access rights, usufruct or full ownership.7 TheDivision also acknowledges that a ‘unitary model of the household is ofteninappropriate’ and that ‘formal title is not always necessary or sufficient for

2 process, evaluation and related financing instruments that underpin a povertyreduction paper: CC Tan A new regulatory discipline: Poverty reduction strategy papers(PRSPs) in the framework of postcolonial international law and global governance,unpublished PhD Thesis, University of Warwick, 2007.

2 World Bank Land policies for growth and poverty reduction (2003).3 A Manji The politics of land reform in Africa: From communal tenure to free markets (2006)

54-57; and K Deininger & H Binswanger ‘Evolution of the World Bank’s land policy:Principles, experiences and future challenges’ (1999) 14 The World Bank research observer247.

4 Manji (n 3 above) 54-61. 5 World Bank (n 2 above).6 A Whitehead & D Tsikata ‘Policy discourses on women’s land rights in sub-Saharan

Africa: The implications of the return to the customary’ (2003) 3 Journal of AgrarianChange 82.

7 World Bank (n 2 above) 25.

80 Chapter 4

high levels of security of tenure’.8 Hence, the major shift in the Bank’s 2003paper is the consistent reference to ‘secure property rights’ as opposed to‘formalised title’.

Four key issues are identified under the land policy framework of 2003to ensure that a land reform makes ‘meaningful’ contribution to theeconomic growth of a country: the promotion of owner-operated farms forincreased agricultural productivity; security of land tenure; land disputesas disincentives to investment; and promotion of a credit market based onland as collateral.9

The views of the Bank’s Land Policy Division as contained in the landpolicy framework of 2003 are not shared by its Macroeconomic, and theEnvironment and Sustainability Divisions. Whitehead and Tsikataconclude that the Macroeconomic, and the Environment andSustainability Divisions of the Bank respectively are still rooted in theproperty rights concept under the Bank’s seminal paper on land of 1975.10

Hence, the Macroeconomic, and Environment and SustainabilityDivisions argue that communal forms of property ownership lead to aninefficient market and over-exploitation and suggest that themodernisation of the ‘customary’ space must remain the central pillar ofthe implementation of land reform in political economies such asMalawi.11 The concerns and observations of the Land Policy Division ofthe Bank seem to have been overridden by the ‘philosophy’ within theMacroeconomic, and the Environmental and Sustainability Divisions ofthe Bank.

Santos suggests that the diametrically polarised positions by differentdivisions of the Bank are not atypical. He points out that there is often alack of consensus within the Bank generally due to ‘institutional inertiaand constraints, groups’ struggles and competition over resources andprestige, and the relationship between groups at the Bank and thegovernments of borrowing countries’.12 While the internal dynamics in theBank reveal a lack of consensus, the ‘dissensus’ is often reduced under therubric of the ‘rule of law’.

The absence of consensus within the Bank (especially) means that thenature of land reform, the implementation of reforms in aid-dependent andheavily indebted economies (symptomatic of most states in the globalSouth) is highly inconsistent and contradictory.13 However, Ngugi argues

8 World Bank (n 2 above) 38-39.9 World Bank (n 2 above); and Manji (n 3 above) 57.10 Whitehead & Tsikata (n 6 above) 80-88. 11 Whitehead & Tsikata (n 6 above) 82.12 A Santos ‘The World Bank’s uses of the “rule of law” promise in economic

development’ in D Trubek & A Santos (eds) The new law and economic development: Acritical appraisal (2006) 255.

13 Whitehead & Tsikata (n 6 above) 88.

Global-local policy linkage, responsibilisation and the land question 81

that the contradiction in the Bank represents a strength since any traits of‘systemism’ are ‘decentred’ and, in the process, mask its hegemoniccharacter.14 This suggests that the contradiction may be exploited by theBank to its ‘advantage’.

While the rhetoric in the Land Policy Division is for a ‘human-centredapproach’ to land reform, the implementation strategy suggests deferenceto the philosophy of the Macroeconomic, and the Environment andSustainability Divisions of the Bank. In relation to the broaderdevelopment agenda, Rittich has observed that the ‘basic institutionalarchitecture’ and the ‘core legal reform agenda’ of the internationalfinancial institutions have not changed.15

Notwithstanding the dissensus within the Bank, the dissensus at thelocal Malawian space is ameliorated in two ways. First, the quest for theresolution of the land question is immersed in the broader context ofpoverty reduction. Second, the coalescing of land reform and povertyreduction leads to an even broader agenda under the rubric of ‘goodgovernance’. The focus on poverty reduction is one way of marginalisingthe land question. Suffice it to say that ‘good governance’ is contestedterritory and its critics consider it a legitimation apparatus for an ‘imperial’agenda.16 One of the critics, Anghie, has observed that the ‘goodgovernance’ initiative is a basic task for the ‘reproduction of principles andinstitutions’ for ‘progress’ and ‘stability’ in the global South.17 The pointcan still be made that the strategic iteration by the Bretton WoodsInstitutions under the rubric of good governance ensures that their variousframeworks are in apparent symmetry at both the global and the localspaces.

1.2 The national macroeconomic framework as a site of conformity

The Malawi Growth and Development Strategy II stems from a processthat began in 1994 with the development of what was called the Vision

14 JM Ngugi ‘The World Bank and the ideology of reform and development ininternational economic development’ (2006) 14 Cardozo Journal of International andComparative Law 313328.

15 K Rittich ‘The future of law and development: Second generation reforms and theincorporation of the social’ in Trubek & Santos (n 12 above) 205.

16 World Bank Governance and development (1992). For some of the critics: A Anghie‘Civilisation and commerce: The concept of governance in historical perspective’(2000) 45 Villanova Law Review 887; S Prozorov ‘Three theses on governance and thepolitical’ (2004) 7 Journal of International Relations and Development 267; J Demmers etal Good governance in the era of global neoliberalism: Conflict and depoliticisation in LatinAmerica, Eastern Europe, Asia and Africa (2004); and AJ Ayers ‘Demystifyingdemocratisation: The global constitution of (neo)liberal polities in Africa’ (2006) 27Third World Quarterly 321.

17 Anghie (n 16 above) 894. For a liberal ideation of ‘good’: P Selznick The moralcommonwealth: Social theory and the promise of community (1992).

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2020 programme in the country. The programme was championed by theBretton Woods Institutions on the back of a changed mindset that longterm economic planning (as opposed to the short periods under structuraladjustment programmes) was ‘beneficial’ to national economies. Underthe Vision 2020 programme, the state was to evolve into ‘a technologicallydriven, middle income country’ by the year 2020. The Vision 2020programme was launched with salute and splendour by the MuluziAdministration on 31 March 1998 as the blueprint to guide Malawi’sdevelopment for the next 22 years.

The following issues were given priority under the programme: goodgovernance, sustainable economic growth and development, vibrantculture, well developed economic infrastructure, food security andnutrition, science and technology-led development, social sectordevelopment, fair and equitable distribution of income and wealth, andsustainable environmental management. In relation to the land question,the following ‘strategic challenge’ was identified under the issue ofsustainable economic growth and development: increasing access to landby smallholder farming households. The ‘strategic’ options that weredeveloped included: ‘undertaking land reform; moratorium on theconversion of land from the “customary” land sector to the private landsector for the growth of estate agriculture; establishing an agriculturalcredit guarantee scheme and establishing a land bank to provideagricultural credit; widening the window of credit provided by financialinstitutions to all agricultural stakeholders for production, marketing andagro-processing.’18

The Vision 2020 programme did not run its full course. The MalawiPoverty Reduction Strategy Paper19 replaced the Vision 2020 programmeafter the latter had been in the implementation stage for a period of four ofthe projected 22 years. In turn, the Malawi Growth and DevelopmentStrategy II20 is a continuation of the Malawi Growth and DevelopmentStrategy and the Malawi Poverty Reduction Strategy Paper after theexpiration of the initial Strategy in 2011 and the Paper in 2005 respectively.

18 The Vision 2020 programme is fully referred to as the National Long TermDevelopment Perspective, 1997-2020: Government of Malawi National long termdevelopment perspective, 1997-2020, Volume 1 available at http://www.sdnp.org.mw/~esaias/ettah/vision-2020/ (accessed 4 December 2009). The programme wasdeveloped by a core team comprising the following Malawians: Anthony Mawaya (asthe Team Leader), Charles L Chanthunya, Josephat M Chikadza, Zangazanga DChikhosi, Hendrine Givah, Dan Kamwaza, Mercy Kanyuka, Ian N Kumwenda,Maxwell Mkwezalamba and Naomi Ngwira. It was funded by the UNDP:Government of Malawi (in this note).

19 Government of Malawi Malawi Poverty Reduction Strategy Paper (2002). Thisprogramme was implemented from the 2001/2002 fiscal year. The Paper proclaimsthat it is the ‘overarching statement of strategy’ forming ‘the basis of all futureGovernment activities and provides a guiding framework for Government’sdevelopment plans, both domestic and international’: see n 32 below; and GoM (inthis note).

20 Government of Malawi Malawi Growth and Development Strategy (2011).

Global-local policy linkage, responsibilisation and the land question 83

In general terms, apart from the difference in periodisation, the Vision2020 programme, the Poverty Reduction Strategy Paper, the MalawiGrowth and Development Strategy, and the Malawi Growth andDevelopment Strategy II are a continuum.

It is pertinent to situate the Malawi Poverty Reduction Paper, theMalawi Growth and Development Strategy, and the Malawi Growth andDevelopment Strategy II in the global context. Poverty reduction strategiesin the global South emerge following the shortcomings of structuraladjustment programmes.21 The rationale of the poverty reductionstrategies is grounded in their five core principles; namely: that they arecountry-driven; that they are result-oriented; that they aremultidimensional in nature in combating poverty; that they arepartnership-oriented; and that they are based on a long term strategy forcombating poverty reduction.22

The World Bank has stated that the poverty reduction strategiesrepresent a ‘new form of social contract’ whereby the strategies are thebasis for all Bretton Woods Institutions’ financing to low-income countriesof the South.23 The strategies are the condition precedent for qualificationunder the Heavily Indebted Poor Country (HIPC) Initiative. The emphasison poverty reduction strategies was meant to symbolise a change inapproach by the Institutions themselves. The changed approach iscontained in the World Bank’s Comprehensive Development Framework(CDF) and the International Monetary Fund’s Poverty Reduction GrowthFacility (PRGF). The CDF and PRGF are to be reflected in povertyreduction strategies developed by country authorities. Countries qualifyingfor the HIPC Initiative and the Institutions’ concessional lending generallyare required to produce a poverty reduction strategy paper. The HIPCInitiative itself has two major preconditions: first, access to HIPC benefitsis ‘conditional on the adoption of a range of policies believed necessary fordebt sustainability to improve connections between local economies and(international) capital and commodity markets, and to implement mildlynuanced Washington Consensus regimes of macro-fiscal management’.24

Second, poverty reduction strategy papers serve as an ‘accountabilityframework to explicitly bind country debt management into global macro-economic, governance and social policies’.25

The advocates of poverty reduction strategies state that the strategiesameliorate the ‘power asymmetry’ prevalent in international development

21 Tan (n 1 above).22 Tan (n 1 above) 6; and IMF ‘Factsheet: Poverty Reduction Strategy Papers (PRSP)’

http://www.imf.org/external/np/exr/facts/prsp.htm (accessed 15 January 2009). 23 World Bank Towards country-led development: A multi–partner evaluation of the

comprehensive development framework report (2003) 13.24 D Craig & D Porter ‘Poverty reduction strategy papers: A new convergence’ (2003) 31

World Development 53 60. 25 Craig & Porter (n 24 above).

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financing.26 The antithesis is that the nature of the changed approach islargely oratorical. Tan has argued that, contrary to the rhetoric, povertyreduction strategies perpetuate a ‘mythologisation’ of ‘laboratory’ freemarket economics.27 Second, Tan argues that poverty reduction strategiesare a form of ‘discipline’. She contends:

[T]he framework serves, to a large extent, as a regulatory restraint for thestates subject to its discipline. It follows from the conceptual principles andoperational directives underpinning the […] approach that the [povertyreduction strategies] state as recipient of concessional financing and debtrelief, must demonstrate its desire to be disciplined by a set of rulesrepresenting the universal normative framework for all state resourceextraction, allocation and administration.28

The point resonates with the notion of hegemonic responsibilisation. In amarket of authorities, the state is a ‘facilitator’ of prescribed code ofconduct, standards or guidelines. Poverty reduction strategies are, in thiscontext, prescriptions of ‘conduct’ that the state then facilitates. Under thefacilitation, both the state and a non-state may be the agent ofresponsibilisation.

Poverty reduction strategies are expected to boost country ownershipof the HIPC Initiative but at the same time they are a mechanism for theaccountability and transparency of national budgetary policy at the globallevel. This represents an inherent contradiction. The reality is that povertyreduction strategy papers are linked to macro-budget planning andexpenditure control devices of Bretton Woods Institutions; most notably,the MTEF.29 The MTEF links poverty reduction to the top-down resourceenvelope and a bottom-up estimation of the current and medium termcosts of development policies.30 Indeed, Craig and Porter have concludedthat the ‘PRSP/MTEF linkage’ forms an ‘extra-parliamentarytechnocratic decision making’ serving the interests of (international)capital – precisely ‘Northern’ economies – by ensuring adherence toconditionality – often a plethora of ‘pre-defined ends’ – governingsovereign governments.31

The foregoing sets the context of Malawi’s poverty reductionstrategies. Indeed, even though the development of the National LandPolicy was contemporaneous with the development of the povertyreduction strategies for the country, the land question has not beenaddressed within the context of the macroeconomic framework that wasbeing formulated for the country. I return to the point below.

26 Tan (n 1 above) 6.27 Tan (n 1 above).28 Tan (n 1 above) 7.29 Craig & Porter (n 24 above) 60-61.30 Craig & Porter (n 24 above).31 Craig & Porter (n 24 above) 61.

Global-local policy linkage, responsibilisation and the land question 85

The prescriptions of the Bretton Woods Institutions are self-evidentwithin Malawi’s macroeconomic framework. There is a lack of synergybetween the macroeconomic frameworks that have been developed by thestate over the years and the National Land Policy. The Malawi PovertyReduction Paper, for instance, stated that it was ‘the overarching strategythat will form the basis for all future activities by all stakeholders, includingGovernment’ and its overall goal was ‘to achieve sustainable povertyreduction through empowerment of the poor’.32 The state asserted that‘[r]ather than regarding the poor as helpless victims of poverty in need ofhand-outs and passive recipients of trickle-down growth, the [state] seesthem as active participants in economic development’.33

While limited access to land has been identified as one of the five keycauses of poverty in the country,34 it has been observed that under theMalawi Poverty Reduction Strategy, (access to) land was ranked seventhamongst the issues that needed to be resolved to enhance agriculturalproductivity for pro-poor growth.35 This is the case despite theacknowledged centrality of access to land in boosting the agriculturalsector and ultimately the state’s efforts in poverty reduction.36

The lukewarm prioritisation of the land question is perpetuated underthe Malawi Growth and Development Strategy and the Malawi Growthand Development Strategy II respectively. The Malawi Growth andDevelopment Strategy was – again – the ‘overarching strategy’ for the2006/2007 to 2010/2011 fiscal years and was meant to serve as the ‘singlereference document’ for ‘Government policy, private sector, non-governmental organisations and cooperating partners’ in relation to socio-economic growth and development priority.37 It was the national blueprintfor poverty reduction through economic growth and infrastructuredevelopment. The Strategy was based on five themes: sustainableeconomic growth; social protection and disaster management; socialdevelopment; infrastructure development; and good governance.38

Similarly, the Malawi Growth and Development Strategy II is ‘theoverarching medium term strategy for Malawi designed to attain Malawi’slong term aspirations as spelt out in its Vision 2020’ for the 2011/2012 to

32 Government of Malawi National Land Policy (2002) xi.33 Government of Malawi (n 32 above).34 Government of Malawi (n 32 above) x. The other key causes are low education, poor

health status, limited off-farm employment and a lack of access to credit.35 E Chirwa ‘Access to land, growth and poverty reduction in Malawi’ (2004) (on file

with the author).36 B Chinsinga ‘Resurrecting the vestiges of a developmental state in Malawi? Reflections

and lessons from the 2005/2006 Fertiliser Subsidy Programme’ Paper presented at the2007 Guy Mhone Memorial Conference on Development: Public Sector Reforms inAfrica: Retrospect and Prospect, 22-24 August 2007, Zomba, Malawi (on file with theauthor).

37 Government of Malawi Malawi Growth and Development Strategy (2005) 3.38 Government of Malawi (n 37 above) 5-13.

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2015/2016 fiscal years.39 There are nine key priority areas and the sixthematic areas under the Strategy II. The priority areas are: agriculture andfood security; transport infrastructure and Nsanje World Inland Port;energy, industrial development, mining and tourism; education, scienceand technology; public health, sanitation, malaria and HIV and AIDSmanagement; integrated rural development; green belt irrigation and waterdevelopment; child development, youth development and empowerment;and climate change, natural resources and environmental management.These stem out of the following six thematic areas: sustainable economicgrowth; social development; social support and disaster risk management;infrastructure development; improved governance; and cross-cuttingissues.40

There is no clear linkage between the Strategy, the Strategy II and theNational Land Policy towards the resolution of the land question. Forexample, the Strategy provides for agricultural productivity under thetheme of sustainable economic growth. The state states that smallholderfarmers will have to increasingly ‘commercialise’ for them to becompetitive in the domestic and export markets.41 The state asserts thatlow agricultural productivity has been due to dependence on rainfedagriculture, poor land and crop husbandry, declining soil fertility, poorland rights, non-existence or weak linkage to domestic and exportmarkets.42 This call for increased commercialisation of the ‘smallholders’resonates with the findings of the Department for InternationalDevelopment of the British government in 2004 and indeed the Ministerialand Presidential Statements of the Malawi government of 2009.43 Theconfluence of language here reveals the nature of responsibilisationunderway.

Under the Strategy II, the closest connection to the resolution of theland question is contained in the section on the Green Belt Initiative. Ireturn to the Initiative below. Suffice it to say that one of theimplementation strategies to arrest the low agricultural productivity is therecognition and formalisation of ‘customary land rights’ of smallholdersthrough appropriate legislation.44 The macroeconomic frameworks do notmake specific reference to the National Land Policy. Indeed, theimplementation strategy in respect to ‘customary land rights’ is the onlyconnection between the frameworks and the Policy.45 The implementationstrategy localises the ‘new approach’ to land reform that the World Bank

39 Government of Malawi (n 20 above) xi.40 As above.41 Government of Malawi (n 37 above) 6-7.42 Government of Malawi (n 37 above) 35.43 M Adams A review of DFID’s engagement with land reform in Malawi (2004) (on file with

the author).44 Government of Malawi (n 37 above) 36.45 The Strategy must be concerned with access to available arable land as opposed to

formalisation or recognition of ‘customary land rights’.

Global-local policy linkage, responsibilisation and the land question 87

is now advocating. Following from the argument in Chapter 3, the issue isnot so much whether an approach is ‘old’ or ‘new’; conception of the‘customary’ space itself is problematic. To the extent that land reform inMalawi does not accept that ‘customary’ land is in fact part of public landand that the occupants under those parcels of land are akin to tenants atwill, then the wrong prescription at the normative level may render theland reform in the country futile. This, in turn, engenders the irresolutionof the land question.

Further, the increased commercialisation by smallholders may requireincreased land consolidation. Land consolidation would be in sharpcontrast to the call for land redistribution that is advocated under the LandPolicy at least in the short term. I build on the point in the discussion onthe National Land Policy below. However, what is clear, and what ismissing from the Strategy and the Strategy II, is that increased landpressure points to the absence of a non-agricultural economic base in thecountry. Clear efforts to develop an alternative economic base in thecountry may complement initiatives towards the resolution of the landquestion.

Ultimately, the lack of synergy between the processes of thedevelopment of the National Land Policy and the macroeconomicframeworks is significant for two reasons: First, the macroeconomicframeworks have been the ‘overarching framework’ for the ‘development’of the state such that in the event of a contradiction between the povertyreduction strategy and a sectoral policy the former takes precedence.46

Second, the macroeconomic frameworks have formed the linkage betweenthe local Malawian space and the global space whereby the Bretton WoodsInstitutions dictate the direction of the country’s macro economy.

The Bretton Woods Institutions’ propensity to prevail can be linked toFoucault’s apparatuses of security. In Chapter 2, four apparatuses – thedispositifs – of security were highlighted; namely, space, uncertainty,normalisation and correlation of security of the population. It was notedthat the Foucauldian notion of security relates to the technology of powerwhereby a process of normation – normalisation – is key. In the context ofthe land question, the normative problems relating to the conception of the‘customary space that have been pointed together with the ‘supremacy’ ofthe macroeconomic frameworks drive this process of normation.

46 Government of Malawi (n 37 above) 3. This position was confirmed by a senior officerin the Ministry of Finance of the Government of Malawi: Key informant interview, 3November 2008.

88 Chapter 4

2 National policy interventions in the land question

I discuss the following national policy interventions in relation to the landquestion in Malawi: the National Land Policy; the PresidentialCommission of Inquiry on Land Policy Reform; the three land utilisationstudies that took place between 1995 and 1998; the review of land-relatedlaws by the Malawi Law Commission; and the Greenbelt Initiative.

Regarding the National Land Policy, the following observations maybe made: The Policy was formulated under the aegis of the World Bankand adopted by the state in January 2002. It is grounded in a market-basedapproach to land reform. Its main thrust is that it ‘reflect[s] the imperativeof changing economic, political and social circumstances’ in Malawi.47 Itforms the basis for the development of ‘a comprehensive land law withimmense economic and social significance’.48 It also seeks to provide ‘asound institutional framework for democratising the management of landand introduces … procedures for protecting land tenure rights, land basedinvestments and management of development at all levels’.49

The process that led to the adoption of the Land Policy follows closelyfrom agrarian and other studies commissioned by the MuluziAdministration in cooperation with the country’s development partnersbetween 1995 and 1998. Notable amongst these national interventionswere the Presidential Commission of Inquiry on Land Policy Reform; andthe Public Land Utilisation Study, the Estate Land Utilisation Study, andthe Customary Land Utilisation Study. The broad mandate andmethodology of the Presidential Commission and the three land utilisationstudies required them to lead to the development of sound ‘scholarlydiscourse’ which would in turn lead to an informed intervention towardsthe resolution of the land question. The rhetoric was that this informedintervention would lead to the development of a robust national landpolicy. The Presidential Commission and the land utilisation studies useda wide participatory approach involving the private sector, ordinarycitizens and non-governmental organisations, all geared to aid land reformin the country.50

The Presidential Commission’s Report of 1999 and the findings of thethree studies are, as it will be shown, contradictory. However, the rhetoricstill states that the findings of the Commission and the studies purportedlybecame an informed basis for the development of the Policy. In turn, thePolicy is meant to be the blueprint for the development of a new land law

47 Government of Malawi (n 32 above) 8.48 Government of Malawi (n 32 above).49 As above.50 Government of Malawi Report of the Presidential Commission of Inquiry on Land Policy

Reform: Volume 1 (1999) 3-11; and Chinsinga (n 36 above) 4.

Global-local policy linkage, responsibilisation and the land question 89

regime for the country.51 The Law Commission was tasked withtranslating the Policy into law. A special Law Commission wasempanelled in 2003 whose mandate, amongst other things, included thereview of existing land-related legislation, the development of newlegislation for effective land administration, codification of ‘customary’land law, and the definition of the role of traditional authorities and localgovernment in land administration.52 While the Commission finalised itswork in March 2006, Parliament is yet to enact its recommendations intolaw.53 Chinsinga, writing in 2008, concludes:

[T]here is mounting evidence that the delays in implementing the landreforms – championed as a priority policy issue to galvanise popular supportfor the democratisation project – is stretching the patience of the ‘land hungrypeople’.54

The work of the Presidential Commission, the land utilisation studies, thePolicy and the work of the Law Commission are a result of the urge todevelop a ‘single’ or ‘comprehensive’ national framework on land.55 It isnoted that a fairly robust sectoral policy, albeit a bimodal one, has alwayscovered the country’s agricultural sector.56 However, there has been asustained lack of policy synergy in the strategy deployed for the resolutionof the land question. The Presidential Commission, for instance, identifiedother sectoral policies, namely, the National Land Use and ManagementPolicy; the National Environmental Policy and Action Plan; the NationalForestry Policy; the National Irrigation Policy and Development Strategy;the National Housing Policy; and the National Physical DevelopmentPlan. However, the Presidential Commission noted that while all thesesectoral policies addressed land issues, particularly land tenure; theylacked intersectoral synergy which merged into an integrated frameworkthat forms a basis for efficient resource utilisation in the national politicaleconomy.57

In 2009, the state launched the Green Belt Initiative. The MutharikaAdministration, on 23 June 2009, announced that it will roll out theInitiative to foster agricultural production in the country. The Initiative istouted as a programme which will see the utilisation of some 1 million

51 Government of Malawi (n 32 above); and S Holden et al ‘Land policy reform: The roleof markets and women’s land rights in Malawi’ (2006) 13.

52 Malawi Law Commission Report of the Law Commission on the review of land-related laws,Malawi Government Gazette Extraordinary, 9 April 2010, 5-6.

53 Key Informant Interview: 25 March, 2008. See also PE Peters & D Kambewa ‘Whosesecurity? Deepening social conflict over “customary” land in the shadow of landtenure reform in Malawi’ (2007) 45 Journal of Modern African Studies 447; andB Chinsinga ‘Exploring the politics of land reforms in Malawi: A case study of theCommunity Based Rural Land Development Programme (CBRLDP)’ IPPGDiscussion Paper Number 20 (2008).

54 Chinsinga (n 53 above).55 Government of Malawi (n 50 above) 27.56 Government of Malawi (n 50 above) 29.57 Government of Malawi (n 50 above) 32.

90 Chapter 4

hectares of arable land under irrigation agriculture. This is a strategy thatis apparently meant to enhance food security for the country consideringthe unreliability of rain-fed agriculture.

The policy interventions here have emerged on the back of the logicthat ‘clear and unambiguous policies [must] precede plans, programmesand implementation instruments’.58 A number of observations may bemade in that respect: The interventions have been dominated by anunderlying market-based land reform modelling which has beenchampioned by Malawi’s development partners. History and context hasnot been a key consideration. As the discussion below reveals, this hasundermined the nature of the recommendations under the intervention.

Second, the conceptual shortcomings relating to the ‘customary’ spacehighlighted in Chapter 3 continue. The policy interventions do notproblemmatise the ‘conception’ of the ‘customary’ space at all. The natureof ‘customary’ land tenure based on a communitarian ethos has been takenfor granted.

Third, the lack of intersectoral synergy that the PresidentialCommission itself identified remains. There is a lack of concerted linkagesbetween the country’s macroeconomic frameworks and the initiativesunder the land reform. As noted above, the extent that the macroeconomicframework is formulated as the overarching framework for the country’sdevelopment, it means that the Bretton Woods Institutions define thenegotiability of the issues that relate to the land question by theconstituencies under the land reform, at least at the policy level. This is yetanother manifestation of the Foucauldian technologies of normalisationunder a process of hegemonic responsibilisation. As noted in Chapter 2,uncertainty (in this case revealed through policy disjuncture) is a trait ofbiopower.

Fourth, while the rhetoric is that the Presidential Commission and thethree studies proceeded on a common platform meant to ultimately feedinto a national land policy, there is no synergy between therecommendations of the Presidential Commission and the three landutilisation studies; nor is there any synergy amongst the studiesthemselves. Finally, and more critically in relation to the resolution of theland question, the various initiatives failed to ascertain in definitive termsthe area of available arable land in the public land, the private land and the‘customary’ land sectors. This is the case despite the fact that one of theobjectives of the studies was to precisely ascertain the levels of availabilityof land under the three sectors.

58 Government of Malawi (n 50 above) 35.

Global-local policy linkage, responsibilisation and the land question 91

Although the Presidential Commission and the three studies are toutedas having informed the development of the National Land Policy, a closeexamination of the processes does not support this position. The conflictand confusion amongst the reports of the Presidential Commission and thestudies does not enrich the Land Policy as a blueprint for the resolution ofthe land question in the country. In any event, the report of the PresidentialCommission was not supported by the state. This, in my view, suggests afurther disjuncture between the processes under the PresidentialCommission and the three studies, on the one hand, and the Land Policy,on the other. Hence, to the extent that the ‘theory’ of the Policy isproblematic, an automatic transition from policy to law through the workof the Law Commission is equally problematic and only entrenches theirresolution of the land question.

Finally, in light of the contradiction and confusion amongst theNational Land Policy, the work of the Presidential Commission, the landutilisation studies, and the Law Commission’s intervention, it is even moreintriguing that the state has since launched the Green Belt Initiative.Indeed, the Initiative entrenches Foucauldian uncertainty.

I now discuss the various interventions below:

2.1 ‘Let sleeping dogs lie’: The Presidential Commission of Inquiry on Land Policy Reform, 1996

The Presidential Commission was appointed by the MuluziAdministration on 18 March 1996. It comprised fifteen Commissionersdrawn from the academia, private business, parastatal corporations, theestate sector, political parties, women groups, chiefs, and the clergy.59 TheCommissioners were predominantly urban-based and male; two weremale chiefs; two were women; and none were representatives of the landdeprived. The Commission’s terms of reference included, amongst otherthings, ‘to undertake a broad review of land problems throughout Malawi,and recommend the main principles of a new land policy which will fostera more economically efficient, environmentally sustainable and sociallyequitable land tenure system’.60 Beyond the principles for a new landpolicy, the Commission was mandated to ‘suggest guidelines for basic landlaw and subsidiary legislation to give effect to the new policy’.61

The Commission commenced its work in earnest on 8 January 1997up to and including 31 March 1999, a period of some 26 months, when its

59 Government Notice Number 20 of 1996 published in the Malawi Gazette Supplementof 18 March 1996; and Government of Malawi (n 50 above) 1-3. One Commissionerpassed away in the course of the Commission’s work and another left for furtherstudies outside Malawi. Thirteen Commissioners signed the final report.

60 Government of Malawi (n 50 above) 3-7.61 Government of Malawi (n 50 above) 5.

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Report was published. During this period, the Commission conducted 230public hearings, three regional consultative workshops, and one nationalworkshop on its preliminary findings.62 At the beginning of its work, theCommission re-interpreted its terms of reference and concluded that: itwas not a court of law, the legislature nor a land distribution agency.Hence in its approach to the land question, the Presidential Commissionresolved that it would conduct a comprehensive inquiry into the history ofland law and policy in the country; the social reality of the land question;the ‘nature’ and ‘performance’ of the land tenure systems under the 1967reforms; the inheritance systems; and the land administration system.63

Despite the re-interpretation, in relation to the land question in thecountry, the recommendations of the Presidential Commission may besummed up in their own language at page 20 of their report: In view of‘political and economic expediency,’ the country must ‘let sleeping dogslie’. This is the Commission’s position despite acknowledging the seriousland asymmetry due to land law and policy that was followed under thecolonial state and, subsequently, the Banda Administration. The followingdiscussion looks at what the Presidential Commission meant by ‘lettingsleeping dogs lie’ and indeed why the dogs could not be awakened.

The Presidential Commission was funded by the state; the DanishInternational Aid Agency (DANIDA); the Food and AgriculturalOrganisation (FAO); the United Nations Development Programme(UNDP); and the World Bank.64 Besides the Commissioners, a team ofthree Malawian consultants, an FAO team and four foreign consultantsprovided ‘technical’ support.65 In fact, the Commission acknowledges thatthe delay to the start of its work (from the time of gazetting on 18 March1996 to the actual commencement of work on 8 January 1997) was due to‘a number of logistical and substantive issues involving funding, workingconditions and infrastructure [that] were [unresolved] by the[G]overnment of Malawi and its bilateral and multilateral partners’ andthat work only started when the Project Support Document was signed.66

The Presidential Commission makes a number of observations andfindings, and gives recommendations regarding the land question where itdeemed it appropriate. Three areas are highlighted: First, the Commissionacknowledges the nature of colonial land law and policy as a critical factorin buttressing the land question in the country.67 The Commission

62 Government of Malawi (n 50 above) 9-10. 63 Government of Malawi (n 50 above) 6-7. 64 Government of Malawi (n 50 above) especially the acknowledgements section. 65 Government of Malawi (n 50 above). The Malawian consultants were: Charles

Chanthunya, Francis Liuma and Modechai Msisha. The foreign consultants were:Simon Keith, HWO Okoth-Ogendo, Barron Orr and Michael Smart: Government ofMalawi (in this note).

66 Government of Malawi (n 50 above) 7.67 Government of Malawi (n 50 above) particularly in Chapter 2 of the Report.

Global-local policy linkage, responsibilisation and the land question 93

observed that since the logic of colonial capitalism was to inculcate whiteeconomic enterprise through systemic land alienation, the Commissionfound that the colonial state ‘stultified’ the evolution of ‘customary landlaw’.68 This was the case because the ‘indigenous’ society lacked title toland. The ‘customary’ law that applied to them could only be personal lawas opposed to property law.69 Hence, the Commission recommended thatthe 1967 reforms must be repealed as they perpetuated colonial practice.70

The Commission states:

If ‘customary land’ remained, in law, an integral part of ‘public’ (or crown)land, what regime of law governed its occupation and use? An answer to thatquestion is to be found in the fact that since under colonial law Africans hadno title to land, the only issue of concern was how to regulate occupationrights among them. This was clearly a personal (not property) law issuegoverned by customary law.

...

The domain of customary law was therefore very severely curtailed. That isthe position in which indigenous communities found themselves atindependence in 1964. At independence the Governor ceased to exercise anypower in Malawi. It was now open to the new administration to define itsown land policies and law without direct intervention from the colonialadministration. In 1965 it passed the Land Act. The Land Act 1965, however,did not change this situation. It merely repeated the existing categories ofprivate, public and customary land adopted in the Land Ordinance of 1951.71

The Commission also concluded that it was impossible to implementradical land redistribution from erstwhile land owners in favour of the landdeprived. This was the case notwithstanding the fact that the nature of theland question demanded such a radical step. Hence, the Commissionrecommended that the state must ‘refrain’ from disturbing the titles derivedfrom the Certificates of Claim that were issued in the country in 1902 topredominantly white farmers as evidence of ownership of the land in theirpossession.72 The Commission observed that in light of the ‘neglect’ of the‘indigenous’ society under colonial law and policy, an alternativeapproach to the land question would be more meaningful. Here, theCommission recommended the setting up of ‘a meaningful socialdevelopment fund and plan’ and the contributors to the fund were tocomprise the British Government, large estate owners with freehold titleand the state. It was the Commission’s view that this would lead to thereduction of unemployment and impoverishment, and the ‘alleviation ofland pressure’ particularly in the southern Malawi districts of Thyolo,Mulanje and Chiradzulu.73 A possible explanation is that the alternative

68 As above.69 Government of Malawi (n 50 above) 24-25. 70 Government of Malawi (n 50 above) 26.71 Government of Malawi (n 50 above).72 Government of Malawi (n 50 above) 20.73 Government of Malawi (n 50 above).

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approach defines the Commission’s language regarding the impossibilityof a rather radical approach to the land question. As far as they wereconcerned this was impossible due to the nature of ‘political and economicexpediency’ in resolving the land question.74

The Commission took the ‘compromise’ position whilesimultaneously duly noting the colossal problems relating to land scarcity,land management and land auditing.75 These three aspects to landtranscended problems of security of tenure. Beyond the proposed socialdevelopment fund, the Commission suggested further alternatives to theresolution of the land question: In light of the ‘highly unsustainable’population growth, the Commission held the view that the state mustdevelop strategies that ease land pressure through the ‘restoration’ oferstwhile ‘customary’ land from idle leaseholds or freeholds;‘enhancement’ of the smallholder sector; and ‘promotion’ of non-agrarianbased economic sectors.76 In the Commission’s view, the short termresponse to easing this land pressure was through a robust and aggressiveimplementation of the Environment Management Act.77

Third, and more critical, the Presidential Commission observed thatthe continued land alienation from ‘customary land’ sector as definedunder the Land Act into the private land sector through the combinedapplication of the Land Act, the Registered Land Act and the CustomaryLand (Development) Act, undermined the resolution of the landquestion.78 It will be clear from the conclusion on the conception of the‘customary’ space in Chapter 3 that the land alienation, if at all, occurredin the public land sector. This land alienation from the public land sectorwas a result of the implementation of the bimodal agricultural policy underthe Banda Administration which favoured the estate sector. I return to thepoint below. However, the Commission recommended that these privateland interests must revert to traditional authorities as custodians ofcommunities under customary law.79 The recommendation is bafflingconsidering that the Commission, by its own analysis, concluded that no‘customary’ land law applied in the country as the ‘indigenous’ society didnot have title to land at law.80 Hence, the reversion of title to chiefs onlyhighlights the problem of the conception of the ‘customary’ space that hasbeen discussed in Chapter 3. Indeed, I have argued in Chapter 3 that theproblem stems from the failure to recognise that ‘customary’ land is in factpublic land under the Land Act.

74 Government of Malawi (n 50 above) 20 and generally in Chapter 3 of the Report.75 Government of Malawi (n 50 above) particularly in Chapter 3of the Report.76 Government of Malawi (n 50 above) 43-56.77 Cap. 60: 02, Laws of Malawi; and Government of Malawi (n 50 above) particularly in

Chapter 3 of the Report.78 Government of Malawi (n 50 above) particularly in Chapter 5 of the Report.79 Government of Malawi (n 50 above).80 As above.

Global-local policy linkage, responsibilisation and the land question 95

Finally, the Presidential Commission recommended that the statemust develop a new land policy that would be ‘fully integrated’ into the(national) development policy. The Commission recommended that thenational land policy would be guided by the principles of the RioDeclaration and Agenda 21 promulgated at the United NationsConference on the Environment and Development (the Earth Summit) inRio de Janeiro, Brasil in June, 1992.81 Specifically, the land policy wouldencompass sovereign control of land; tenure regimes; managementsystems; land administration procedures; dispute processing procedures;institutional arrangements; and sectoral linkages.82 The Commissionconcluded that the robust policy framework would then be legitimatedthrough a land law regime that builds upon existing land laws.83

The Commission’s Report was not well received by both the state;specifically the Muluzi Administration, and an intransigent coterie of thecountry’s development partners. While the report was presented toPresident Muluzi, it was not formally embraced by the state as a policydocument nor, contrary to official rhetoric, was it used in the developmentof the Land Policy. One of the sticking points for this reception is theproposal for the development of the social development fund in theabsence of a more radical redistribution of land in favour of the landdeprived. The Commission had proposed that the fund that would supportthe land deprived would be financed by the British government (as theformer colonial power in Malawi), large estate owners and the state. Theproposal for a fund was unacceptable (particularly to the Britishgovernment) considering that at the regional level the agreement betweenthe British government and Zimbabwe in relation to the latter’s landquestion was turning ‘acrimonious’ with the Zimbabwean governmentcontemplating the implementation of the fast-track land reformprogramme.84

Another issue regarding the Commission’s work was the heightenedexpectation for land redistribution following the political party campaignpromises in the run up to the 1994 general elections in Malawi. TheCommission calculatingly represented itself as a ‘research organisation’rather than ‘the land redistribution agency’ the land deprived in thecountry were anxiously waiting for.85 Second, it is possible to inferoverbearance of the country’s development partners because theCommission’s work was simultaneously conducted with the landutilisation studies commissioned by the state between 1995 and 1998 at theprompting of the country’s development partners. It is unclear why the

81 Government of Malawi (n 50 above); especially Chapter 8 of the Report.82 Government of Malawi (n 50 above).83 Government of Malawi (n 50 above); especially Chapters 8 and 9 of the Report.84 Key Informant Interview: 4 June, 2008. See also Tshuma (Chapter 1, n 15 above); and

Moyo & Yeros (Chapter 1, n 93 above).85 R Palmer ‘Land Policy in Africa: Lessons from Recent Policy and Implementation

Processes’ in Toulmin & Quan (Chapter 1, n 1 above).

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objectives of the Presidential Commission and the three land utilisationstudies were not reconciled. Even though the works werecontemporaneous, they were in many respects contradictory. At any rate,a 2004 assessment of the involvement of the DFID observed that strategicBritish intervention in the land sector in Malawi remained critical to theentrenchment of a market economy in the country.86

2.2 The land utilisation studies, 1995-1998

Between 1995 and 1998, the state commissioned three land utilisationstudies; namely, the Public Land Utilisation Study; the Estate LandUtilisation Study and the ‘Customary’ Land Utilisation Study. The PublicLand Utilisation Study was funded by the United States Agency forInternational Aid (USAID), the Estate Land Utilisation Study by the thenOverseas Development Administration (ODA) of the British government,and the ‘Customary’ Land Utilisation Study by the European Union (EU)through the Bureau pour le Developpement de la Production Agricole (BDPA) ofthe French government.

The studies were commissioned to create a data map ascertaining theland sizes (particularly of arable land) in the public, private and‘customary’ land sectors; and the levels of land utilisation in those sectors.This objective was not sufficiently achieved as the confusion on thestatistics on the availability of arable land and its utilisation remains. Thisconfusion in part undermines the resolution of the land question.

The Public Land Utilisation Study established that very little landremains idle in the sector. The Estate Land Utilisation Study found thatminute tracts of land – less than 1 per cent – were under-utilised and thesewere predominantly in the medium sized estates band. Finally, the‘Customary’ Land Utilisation Study established that pieces of land thatwere recorded as under-utilised in this sector were in fact wetlands orfallow land in the public land sector.

2.2.1 Public Land Utilisation Study

This Study was conducted between April 1996 and March 1998. The Studywas funded by the USAID who commissioned a team from the Universityof Arizona to conduct the Study. The team was led by a non-MalawianDoctor of Philosophy candidate in the University’s Department of AridLand Studies. Out of the four main authors of the report of the Study, onlyone was a Malawian.

86 Adams (n 43 above).

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The main objective of the Study was to ‘provide biophysical data andsocial information on the status and use of publicly held lands’ and oncethe information was collated, it would form a basis for ‘decision makingwithin Malawi’s land policy reform programme’.87 In the discharge of thisbroad mandate, the Study looked at: ‘the location, distribution, size, andrationale for protection of Malawi’s protected areas; the agriculturalsuitability, erosion hazard, population pressure and impact on these areas;the resource use patterns by neighbouring populations; the role thesepopulations play in local economies; the location, size, purpose, andcurrent status of Malawi’s agricultural schemes; and an analyticalframework for site-specific tenure change decisions’.88 The Study adopteda narrow interpretation of ‘public land’; limiting it to forest reserves,national parks and wildlife reserves.89 Notwithstanding this narrowinterpretation of ‘public land’, the Study incorporated agriculturalextension schemes across the country.90

The following are 1998 figures: The Study established that 20 per centof Malawi’s total land area is protected areas. 10 per cent of the land underprotected areas is suitable for agriculture ‘at an acceptable risk of soilerosion’.91 As expected, population pressure was greatest in southernMalawi followed by central Malawi; with Mulanje in southern Malawihaving a high population pressure relative to the protected area of 25persons per hectare. The Study also noted that while northern Malawipresented ‘lower population pressure’ on protected areas, it did notnecessarily mean that the region experienced ‘lower demand for land’. Forinstance, the Study established that in Rumphi, northern Malawi, thetobacco estates that had mushroomed in the ‘customary’ land sector posedsignificant risk of land occupation in the protected areas to alleviate landscarcity in the smallholder farming sector.92 Indeed, as Kanyongolo writesin 2005, these land occupations have since occurred in Rumphi andelsewhere in the country.93

More critically, the Study made these two findings: First, changes inthe protected areas (except the agricultural extension schemes) will entailchanges in tenure and land use. This would not be the case in the estate andthe ‘customary’ land sectors respectively. Second, on the basis of anaverage land holding size of 1 hectare per family household and apopulation growth of 3,2 per cent; even if all public land were available forredistribution, it would only stem the land question for a period of twenty

87 B Orr et al Public land utilization study: Final report (1998) 7.88 As above.89 As above.90 As above.91 Orr et al (n 87 above) 8.92 Orr et al (n 87 above) 9.93 FE Kanyongolo ‘Land occupations in Malawi: Challenging the neoliberal legal order’

S Moyo & P Yeros (eds) Reclaiming the land: The resurgence of rural movements in Africa,Asia and Latin America (2005) 128; ‘Malawi’s supreme court orders villagers to vacateland’ The Nation 7 September 2012.

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years up to 2018 (with time beginning to run in 1998 which is the date ofthe report).94

The Study then made some ten recommendations towards thedevelopment of a national land policy.95 For my purposes, the followingfour are the most crucial: land policy must be holistic and triangulate thepeculiar factors of the public, private and the ‘customary’ land sectorsrespectively;96 the long term resolution of the land question will not beentirely ‘land-based’ and there may be need to develop alternative sourcesof livelihood for the erstwhile smallholder sector;97 the need to ascertain,in definitive terms, the size of available arable land in the ‘customary’ landsector;98 a biophysical cost-benefit analysis must precede any programmeto de-gazette protected areas for purposes of making land available forsubsistence farming.99

2.2.2 Estate Land Utilisation Study

The Study was conducted between July 1995 and April 1997 and wasfunded by the ODA through a grant-in-aid. The Study was concentrated inthe tea estate sector in the Shire Highlands in southern Malawi. There werefour main authors of the report under the Study; only one was a Malawian;and a non-Malawian led the team.

The broad objective of the Study was ‘to contribute to a betterunderstanding of the effectiveness (physical, social and economic) of landutilisation on estates compared with that on customary and on other land,and the potential impact of land policy options’.100 In relation to the landquestion, 65 per cent of land in the tea estate sector was deemed ‘suitable’for agriculture. The tobacco estate sector had 78 per cent of ‘suitable’ landand the sugar estate sector close to 80 per cent. Further, there was no‘suitable’ land that remained underutilised in the sugar estate sector; only1 per cent of ‘suitable’ land in the tea estate sector, and 29 per cent in thetobacco sector remained underutilised.101

The Study established that the southern Malawi districts of Thyoloand Mulanje experienced acute land pressure. This was mainly due to thevery high population densities in the districts; which at the time of theStudy stood at 246 persons per square kilometre and 335 persons persquare kilometre respectively.102 The Study concluded that land

94 Orr et al (n 87 above) 8.95 Orr et al (n 87 above) 11-16. 96 Orr et al (n 87 above) 11.97 Orr et al (n 87 above).98 Orr et al (n 87 above) 13.99 Orr et al (n 87 above) 12.100 RJG Steele et al Estate land utilization study (1997) 1.101 Steele et al (n 100 above) 61.102 Steele et al (n 100 above) 45.

Global-local policy linkage, responsibilisation and the land question 99

redistribution in the estate sector especially in Shire Highlands in southernMalawi would be counter-productive if the land use after the redistributionwould result in maize monocropping. The counter-productivity primarilyarises because the topography of the area favoured plantation cropsonly.103

2.2.3 ‘Customary’ Land Utilisation Study

The Study was conducted between March 1995 and February 1997 by ateam of BDPA researchers. The main objective was ‘to provide theGovernment of Malawi with reliable information on the extent, intensityand efficiency of the land utilisation’ in the ‘customary’ land sector.104 TheStudy had some eight components looking at, amongst other things, landuse, socio-economic analysis of ‘customary’ land tenure, land allocation,and the interaction of the estate and the ‘customary’ land sectorsrespectively.105 The Study noted that by virtue of the definitions of ‘publicland’, ‘private land’ and ‘customary land’ under the Land Act, ‘customary’land in fact operated as a default once public land and private land hadbeen ascertained under the Act. It concluded that the categorisation of landunder the Land Act creates problems of ascertainment of the definitiveland area under ‘customary’ land and this undermines the resolution of theland question in the country.

The Study made the following pertinent observations: Land pressureis a ‘highly localised phenomenon’ such that certain areas of Malawi haveacute land shortages and other areas less so. In turn, land redistribution inareas of acute land shortage would only serve as a short-term measure thatwould wither away in five to ten years. This finding corresponds with thefinding under the Estate Land Utilisation Study; that land distribution inMalawi in relation to the land question would be a short-term measure thatwould stem the problems associated with the land question only up to2018. The second finding was that the estimation of the area under the‘customary’ land sector suffers from poor data records as a result of severalfactors including misrecording of wetland and other fallow land asavailable ‘customary’ land, and fraudulent under-recording of the sizes ofsmall to medium sized estates by the owners to evade higher landrentals.106

103 Steele et al (n 100 above) 61; and Key Informant Interview: 19 May 2008.104 BDPA Customary land utilization study: Report on the socio–economic study on land tenure

(1998) 1.105 BDPA (n 104 above) 3.106 BDPA (n 104 above) 18.

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2.2.4 Reconciling the three land utilisation studies

Two points emerge from the three studies; one logistical and operational,the other conceptual and strategic. First, the objective of the creation of adata map on the statistics ascertaining land sizes in the public land, privateland, and customary land sectors respectively and information on landutilisation was not achieved. Second, the studies concluded that landredistribution would be a short-term resolution of the land question andthere was need to consider other non-land-based strategies. Hence, sincethe three studies did not definitively establish the extent of the availablearable land in the country, the nature of the land ownership and land use,it becomes difficult for purposes of analysis to assess the definitive natureof the land question. This is critical since the land redistribution modelbased on the willing seller/willing buyer approach is central to the landreform in the country.

2.3 The National Land Policy

The National Land Policy is touted as the national framework for landreform.107 The rhetoric is that the Policy is a result of the Report of thePresidential Commission; and the three land utilisation studies that havebeen discussed above.108 It has been observed that the PresidentialCommission recommended that the state needed a comprehensivenational land policy. The rationale for the Commission’s recommendationwas that existing policy statements and legislation were conflicting andlacked inter-sectoral linkages to enable the land sector to meaningfullycontribute to economic development. Three problems; namely, pooraccess to available arable land, improper land use and insecurity of tenurewere identified as major constraints to the efficient usage of land.109

While the Presidential Commission noted the nature of the landquestion was greatly entrenched under the colonial state and the BandaAdministration, it recommended that ‘for reasons mainly of political andeconomic expediency’, the state under the Muluzi Administration should‘refrain’ from overturning the status quo of skewed arable land availabilityand access between erstwhile land owners and the land deprived.110 There

107 Government of Malawi (n 32 above).108 In 1995, the state, with assistance from the World Bank, established a policy planning

unit in the Ministry responsible for land matters. The unit was tasked withcoordinating the land reform process which, amongst other things, included the briefto develop the Policy: Government of Malawi (n 32 above); and Holden et al (n 51above).

109 Government of Malawi (n 50 above) 129-134 ff. 110 Government of Malawi (n 50 above) 20. It is possible to infer that the Presidential

Commission’s position is a result of the agenda setting influenced by the World Bank:R Carver ‘Review of Malawi at the crossroads: The postcolonial political economy by GuyCZ Mhone (ed) and Kamuzu Banda of Malawi: A study in promise, power and paralysis byJohn Lloyd Lwanda’ (1994) 20 Journal of Southern African Studies 486.

Global-local policy linkage, responsibilisation and the land question 101

is no evidence of a deliberate integration of the findings in the report of thePresidential Commission, and the three land utilisation studies into theLand Policy. I have argued that there is a disjuncture between thePresidential Commission’s Report and the studies, and the development ofthe Land Policy.

The disjuncture is also apparent in the development of the Land Policyitself. The Policy was primarily developed by the policy planning unitestablished in the Ministry responsible for land matters of the Malawigovernment. The unit was funded by the EU. It was headed by anInternational Individual Consultant under a World Bank contract. Eventhough the Policy makes reference to the Presidential Commission’sReport and the three land utilisation studies, the reference in my view, is acasual acknowledgement since there is no clear linkage of principles fromthe Report and the studies, on the one hand, and the Policy.111 In anyevent, the Policy in large measure proceeds to make recommendations onthe ‘customary’ space that ignore the critique of the efficiency argument inland reform discourse advanced by, for example, Borras, Deininger andBinswanger, McAuslan, Platteau and Nyamu-Musembi.112 Second, therecommendations confirm the conception of ‘customary’ land tenureunder a communitarian ethos. There is a general failure under the LandPolicy to engage with the conception of the ‘customary’ space in themanner that was discussed in Chapter 3. Finally, the recommendationsignore the critique of the transition to formalisation of interests in land byfor example, Borras, Deininger and Binswanger, McAuslan, Platteau andNyamu-Musembi.113

The following are the specific positions of the state under the Policy:A land policy must reflect the changes in the economic, political and socialfactors in a country. Hence, the key guiding principle of the Policy is thatit must lead to a comprehensive land law ‘with immense economic andsocial significance’.114 The Policy is underpinned by ten principles: secureland tenure; sustainable land management; productive and efficient landuse; effective land administration; protection of vulnerable groups (theseare women, children and persons with disabilities); development of aninstitutional framework for land management, land information system,and optimum utilisation of land.115

The state has argued that the ‘[f]ailure to reform and secure the tenurerights of smallholder [sic] [farmers in Malawi]’ has had a causal link with‘under-investment, reliance on primitive technology and … low wages inrural areas’.116 A legal framework is meant to ‘institutionalise, once and

111 Government of Malawi (n 32 above).112 Chapter 1, n 36 above.113 Government of Malawi (n 32 above).114 Government of Malawi (n 32 above) 1.115 Government of Malawi (n 32 above) 3-4. 116 Government of Malawi (n 32 above) 4.

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for all, a land administration system at the local and district governmentlevel’.117 The guarantee of security of tenure shall be ‘without any genderbias [or] discrimination to all citizens’ under section 28 of theConstitution.118 Further, security of tenure is meant to ‘curb landencroachment, unapproved development, land speculation andracketeering’.119 The discussion below seeks to show the responsibilisationof the individual – as the embodiment of the general population – througha market-based conception of two key elements under the Policy; namely,the ‘customary’ estate as part of the categories of land under the Policy,and the land market. The responsibilisation raises serious doubts inrelation to the resolution of the land question under the Policy.

2.3.1 Categories of land under the Land Policy

The Land Policy urges for ‘formal and orderly arrangements’ of titling.120

The state under the Muluzi Administration equally acknowledged thenature of the land question under both the colonial state and the BandaAdministration and its entrenchment through law and policy.121 In thisrespect, there are three categories of land proposed under the Policy as apossible means of redress of the land question. The categories aregovernment, public and private land. The Policy provides the definitionsfor the three categories of land. Government land shall comprise ‘landowned by government and dedicated to a specified national use or madeavailable for private uses at [its] discretion’. This category shall encompassland reserved for government schools, hospitals or offices etc.122 Publicland shall comprise ‘land held in trust and managed by government or [a]traditional authority and [shall] be openly accessible to the public’. Thiscategory shall cover national parks, forest reserves, or unallocated landwithin an area of a traditional authority.123 Private land shall compriseland held under freehold, leasehold or ‘customary’ estate.124

‘Customary’ estate

There is a major departure from the present land law regime in respect of‘customary’ land as defined under the Land Act. The Policy provides thatall ‘customary’ land under the jurisdiction of each traditional authorityshall be demarcated and registered as a traditional land management areain recognition of the central role of a traditional authority to ‘customary’

117 Government of Malawi (n 32 above) 5.118 Government of Malawi (n 32 above).119 As above.120 As above.121 Government of Malawi (n 32 above) 19-20.122 Government of Malawi (n 32 above) 12.123 Government of Malawi (n 32 above).124 As above.

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land tenure.125 In each traditional land management area, ‘customary’landholdings shall be registered and titled as individual landholdings to beknown as the ‘customary’ estate. The ‘customary’ estate may be registeredin ‘an individual, a family, corporation or organisation allocated“customary” land’.126 The rights in the ‘customary’ estate shall be ‘privateusufructuary in perpetuity’.127 The Policy also provides that ‘onceregistered, the title of the owner will have full legal status …’.128 The titlingand registration of ‘customary’ land is intended to provide security oftenure, promote access to credit and provide an incentive for investment.The assumption here is that titling and registration of all ‘customary’ landwill lead to the emergence of a ‘vibrant formal land market’.129 However,the titling and registration of the ‘customary’ estate shall not render thatland freely alienable. The sale, lease or mortgage over the ‘customary’estate shall be subject to the interest of the community and shall require theconsent of a traditional authority of the area in which the ‘customary’estate is located.130

The ‘customary’ estate is a peculiar fusion of the orthodox perceptionof land tenure. However, a number of observations may be made regardingthe ‘customary’ estate. The effect of titling and registration of the‘customary’ estate at law is that a registered person is the owner of the‘customary’ estate. Hence, the ‘customary’ estate is freely alienablesubject, of course, to existing planning or other legislation.131 Theregistration of usufructuary rights as envisaged under the Policy is amisnomer. A usufruct arises as an inferior interest in land legally owned byanother person. A usufruct cannot accrue to an owner.132 The usufruct canarise if the legal ownership in the land is reposed in a traditional authorityunder a trust or other mechanism under the proposed traditional landmanagement area. Under the ‘customary’ estate, the ‘constructed’ or‘responsibilised’ individual as the title holder sustains the credit or landmarkets. Suffice it to say that the problems that relate to involvement ofchiefs in land issues in a political economy such as Malawi have been

125 Government of Malawi (n 32 above) 23.126 Government of Malawi (n 32 above) 24.127 Government of Malawi (n 32 above) 25.128 Government of Malawi (n 32 above).129 As above.130 As above.131 It is conceded that the Policy envisages that a traditional authority shall provide

consent to a sale of a ‘customary’ estate. In my view, once the estate is registered the‘body’ that may exercise the delegated authority of the state under the principle ofeminent domain is the Minister responsible for land matters. In the context of aneopatrimonial state, chiefs are relevant as layer of patronage, and to the extent thatthey are an unelected institution their political legitimacy or supposed ‘neutrality’ issuspect: R Muriaas ‘Local perspectives on the “neutrality” of traditional authorities inMalawi, South Africa and Uganda’ (2009) 47 Commonwealth & Comparative Politics 28;and generally the discussion in Chapter 5 on the role of chiefs in land reform in thecountry.

132 The point was discussed in Chief JM Kodilinye v Anatogu, Philip Akunne [1955] 1 WLR231 PC. The decision of the Board was applied in Anachuna Nwakobi v Eugene Nzekwu[1964] 1 WLR 1019 PC.

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highlighted in the academy.133 I discuss the role of chiefs in the country’sland question in Chapter 5. Suffice it to say that this construction of thecustomary estate perpetuates the colonial principle of recognition of‘native title’ that was settled in Nireaha Tamaki, In Re Rhodesia and AmoduTijani.

2.3.2 The property clauses in the Constitution of 1994

In 1994, Malawi adopted a new Constitution that is generally based on aliberal democratic order.134 The Constitution replaced a schemedominated by the colonial and one party state respectively embodied underthe 1964 and 1966 Constitutions. It is not clear that the choice for a liberal,democratic constitutional order was based on informed consensus by thecitizenry.135 The adoption of the liberal, democratic constitutional orderseems to have merely conformed to the trends of post-Cold Wargeopolitics.136 On the general adoption of the 1994 Constitution,Kanyongolo has said:

The 1994 Constitution was drafted by a [committee] whose members lackedany popular mandate. There was no subsequent popular legitimation of theConstitution through a referendum or similar process and the resolutions of a‘civil society’ constitutional conference were disregarded by Parliament whenit promulgated the final document. In Malawi, therefore, liberal democracy asa system of governance has no demonstrable public legitimacy.137

133 In the case of Malawi: Peters & Kambewa (n 53 above).134 In the wake of the end of the Cold War, the changes in international geopolitics

precipitated calls for the introduction of multiparty system of government in most sub-Saharan African countries including Malawi. In a national referendum of 14 June1993 (the ‘national referendum’), Malawians, by a majority of two-thirds, voted infavour of the introduction of a multiparty system of government. The results of thereferendum immediately set in motion normative changes to the legal and politicalorder in the state: MS Nzunda & K Ross (eds) Church, law and political transition inMalawi, 1992-1994 (1995); FE Kanyongolo ‘The limits of liberal democraticconstitutionalism in Malawi’ in KM Phiri & K Ross (eds) Democratization in Malawi: Astocktaking (1998) 353; and generally Phiri & Ross (in this note).

135 Kanyongolo (n 134 above) 363-365. The Constitution was drafted by the constitutionalsub-committee of the National Consultative Committee between January and May1994. Some parts of the Constitution were amended in plenary sessions of a full sittingof the National Consultative Committee. The National Consultative Committee was amultiparty forum for the development of a new Constitution for Malawi following thenational referendum: see the National Consultative Act 20 of 1993. The constitutionalsub-committee comprised 5 Malawian lawyers (Zangaphee Chizeze, Khoti Kamanga,MacLaws Makwiti, Modechai Msisha and Temwa Nyirenda) and their secretary was aBritish consultant (Kevin Bampton) commissioned by the British Government throughthe British Council.

136 Kanyongolo (n 134 above); and G Kamchedzera & CU Banda ‘The right todevelopment, the quality of rural life, and the performance of legislative duties duringMalawi’s first five years of multiparty politics’ Research Dissemination SeminarNumber Law/2001-2002/001, available at http://www.sarpn.org.sa/documents/d0001966/index.php (accessed 20 July 2011) 3-4.

137 Kanyongolo (n 134 above) 371.

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However, the Constitution is significant because it reversed theauthoritarianism of the Banda Administration and, at the same time,complying with the constraints set by the Bretton Woods Institutions andthe country’s other development partners. Carver has observed that priorto the multiparty general elections of 17 May 1994, ‘the World Bank ran aseries of seminars for political parties on economic and financialmanagement’. The apparent aim of the seminar series was to ensure thatthe political parties’ agenda reflected World Bank thinking. This mayexplain the lack of a detailed examination of the land question during theconstitution formulation process.138 During the parliamentary debate onthe certification of the Constitution, a member of the Opposition lamentedat the seemingly external interference when he alleged that ‘certainprovisions’ of the Constitution had to be approved by the InternationalMonetary Fund.139

A general overview of the Constitution is that it is the supreme law ofthe land;140 provides for a Bill of Rights under Chapter IV; states that theauthority to govern is derived from the people of Malawi as expressedthrough equal and universal suffrage in an election;141 proceeds on a veryfundamental principle and states that all legal and political authority of thestate derives from the people of Malawi and shall be exercised inaccordance with the principles of the Constitution;142 and creates thepublic trust and the social trust where all persons exercising powers of stateshall do so to the extent of their lawful authority and in accordance withtheir duties and responsibilities to the people of Malawi.143 Suffice it to saythat the Constitution advocates the development of a free market economyin section 13(n). It is suggested however that section 13(n) is tempereddown somewhat with an ‘egalitarian’ approach towards stateresponsibility on, for example, health in section 13(c); education in section25; and economic and social development in section 30, of theConstitution. In relation to property, section 28 of the Constitutionprovides:

(1) Every person shall be able to acquire property alone or in associationwith others.

(2) No person shall be arbitrarily deprived of property.

The Constitution further provides that ‘expropriation of property shall bepermissible only when done for public utility and only when there has beenadequate notification and appropriate compensation, provided that there

138 Carver (n 110 above).139 The contribution of Dr Hetherwick Ntaba, member of Parliament for Lilongwe South

East (Malawi Congress Party) in Government of Malawi Proceeding of Parliament, 30thSession, 3rd Meeting (1995) 1537.

140 Sec 5 of the Constitution.141 Sec 6 of the Constitution.142 Sec 12(i) of the Constitution.143 Sec 12(ii) of the Constitution.

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shall always be a right to appeal to a court of law’.144 Existing rights ofpersons in property at the coming into force of the Constitution were savedthrough section 209 of the Constitution. The property clauses in sections28, 44(4) and 209 of the Constitution are the definitive references toland.145

It must be noted, however, that the property clauses under theConstitution are neither historicised nor contextualised. The clauses donot address the land alienation under colonial capitalism and tolerated bythe state under the Banda Administration. This arises in the context wherethe proponents of a multiparty political system in the country, especiallythe podium politicians, used the prevalent landlessness (particularly insouthern Malawi) to gain the support of the land deprived.146

It is an obtrusive omission that the status quo of land relations in thestate was not a key issue during the constitutional development process nordid it form part of the key resolutions of the ‘civil society’ constitutionalconference.147 Perhaps, this is in part due to the nature of the participantsto the constitutional development process, and indeed the ‘civil society’ inthe state, which was mainly ‘urban-based, elite-led’ and ‘profess[ed] thephilosophy of liberal democracy’.148 Kanyongolo notes, in respect of ‘civilsociety’, that the ‘typical [non–governmental organisation]’ in Malawi iscomplicit in the scheme of a liberal democratic constitutional order and

144 Section 44(4) of the Constitution. In relation to section 28 of the Constitution, theMalawi Law Commission has concluded that the provision is about ‘capacity’ and not‘rights’: See Malawi Law Commission Report on the Technical Review of the Constitution,Malawi Gazette Extraordinary, 16 November 1998, 260. Under the constitutionalreview that began in 2005, the Law Commission did not problematise the propertyclauses at all: Malawi Law Commission Report on the Review of the Constitution, MalawiGazette Extraordinary, 21 September 2007.

145 The provisions do not define ‘property’. Under section 2(1) of the GeneralInterpretation Act, Chapter 2:01, Laws of Malawi, ‘property’ is defined as including‘money, and every description of property, whether movable or immovable, animate orinanimate, obligations and every description of estate, interest and profit, present orfuture, vested or contingent, arising out of or incidental to property’. In comparativeconstitutional law, ‘property’ equally means far more than a corporeal hereditament:Goldberg v Kelly (1970) 397 US 254. In this sense, ‘property’ is de-physicalised: Chitty, Jin In re Earnshaw-Wall; K Gray ‘Property in thin air’ (1991) 50 Cambridge Law Journal252; and K & S Gray ‘The idea of property in land’ in S Bright & J Dewar (eds) Landlaw: Themes and perspectives (1998) 15.

146 Kanyongolo (n 93 above) 131.147 FE Kanyongolo Human rights jurisprudence in polarised societies: A comparative analysis of

Malawi and South Africa, unpublished PhD Thesis, University of East Anglia, 1999. Incontrast, section 25 of the Constitution of South Africa is historicised andcontextualised in relation to land relations arising out of colonial and apartheid SouthAfrica and provides for land redistribution, land restitution and tenure reform.

148 Kanyongolo (n 147 above). Cf Kanyongolo on his discussion of the nature and thecategories of ‘civil society’ in Malawi: Kanyongolo (in this note) 132. See also EDokali (ed) Building blocks of the Constitution of Malawi, 1995 (1995) (on file with theauthor). The list of participants to the National Constitutional Conference on theProvisional Constitution (held at the New State House, Lilongwe, Malawi, 20-24February 1995) shows that the participants were predominantly urban-basedprofessionals from the public and private sectors respectively; members of urban-based,

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does not engage in any radical challenge to the status quo of land relationsin Malawi.149

Section 13(n) of the Constitution advocates the development of a freemarket economy which is then complemented with an obligation on thepart of the state to invest in health, education, economic and socialdevelopment.150 While individual autonomy justifies the free market,Kamchedzera and Banda rightly observe that this is ‘deficient because of[the] assumption that capabilities are equal or necessarily need to beequal’.151 Hence, the liberal legal order of 1994 continues to obscure theasymmetry in the quality of life amongst persons in the country.152

Turning to the actual property clauses, section 28 of the Constitutionis as similarly worded as article 17 of the Universal Declaration of HumanRights. A notable difference is that the operative word under theConstitution is ‘acquire’ as opposed to ‘own’ under the UniversalDeclaration. The wording under the Constitution is broader and mayencompass expectations of acquisition of property.153 However, there isneed to reconcile the reference to ‘arbitrary deprivation’ in section 28(2) ofthe Constitution and ‘expropriation’ in section 44(4) of the Constitutionand there implications for land reform in the country.

The proscription of arbitrary deprivation under the Constitutionrelates to the exercise of police powers of the state without due process ora reasonable relationship between the means of the exercise and thepurpose of the deprivation.154 No compensation is ordinarily available forthe exercise of police powers.155 Expropriation relates to the exercise ofpowers of eminent domain by a state. Section 44(4) of the Constitution laysdown three conditions for expropriation: the expropriation shall be forpublic utility, there must be adequate notification and appropriatecompensation. The Constitution does not define these conditions.

148 non-governmental organisations; chiefs (as representatives of the rural folk);politicians; local and international academics; ‘observers’ from internationalorganisations; and members of the diplomatic corps. In total, 273 delegates and some78 local and international observers attended the Conference. All diplomatic missionsresident in Malawi also had observer status at the Conference and they had a presenceat the Conference: Dokali (in this note).

149 Kanyongolo (n 146 above) 132.150 Secs 13(c), 13(f), 25 and 30 of the Constitution.151 Kamchedzera & Banda (n 134 above) 4.152 Kanyongolo (n 134 above).153 AE Dick Howard et al ‘Commentary on the Constitution of Malawi’ January 1995 (on

file with the author). Howard et al have argued that ‘to acquire’ does not necessarilymean ‘to hold’ and ‘to dispose’.

154 Government of Malaysia v Selangor Pilots Association [1978] AC 337; Lithgow v UnitedKingdom (1986) 8 EHRR 329; James v United Kingdom (1986) 8 EHRR 123; Sporrong &Lonnroth v Sweden (1983) 5 EHRR 35; L Tribe American constitutional law (1988);JW Ely The guardian of every other right: A constitutional history of property rights (1992), allcited in M Chaskalson ‘The property clause: Section 28 of the Constitution’ (1994) 10South African Journal on Human Rights 131.

155 Howard et al (n 153 above); and Chaskalson (n 154 above) 134-135.

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Commentators and indeed the courts have concluded that ‘public utility’or ‘public purpose’ must confer a public benefit or advantage.156 Thereneed not be actual physical use of the expropriated property by the public.It is enough that the expropriation confers a discernible direct or indirectbenefit or advantage to the public.157 Finally, expropriation invokescompensation. In view of the trends in comparable jurisdictions,‘appropriate compensation’ under the Constitution will mean the marketvalue of the property.158 Since the Constitution in Malawi does notexpressly authorise the state to expropriate land at a value lower than themarket price, as does the South African Constitution, for example, there islikelihood that the courts may adopt an open market valuation as ayardstick for computing compensation. A compensation regime based onopen market valuation poses significant financial challenges for politicaleconomies such as Malawi.159

For comparison purposes, the South African position is illuminating.Section 25(3) of Constitution of South Africa provides for factors that willdetermine the level of compensation: the current utilisation of theproperty; the history of the acquisition and utilisation of the property; thelevel of state intervention in the initial acquisition; the market value of theproperty; and the purpose of the expropriation. On the basis of section25(3) of Constitution of South Africa, some commentators have concludedthat in South Africa compensation can actually be less than the marketvalue of the property.160 In comparison, the property clauses under the

156 Chaskalson (n 154 above) 136-137; Pennsylvania Coal Company v Mahon (1922) 260 US393. The Supreme Court in Attorney General v the Malawi Congress Party, LJ Chimangoand Dr HM Ntaba [1997] 2 Malawi Law Reports 181 (Press Trust (Supreme Court) Case)seems to have implicitly adopted the broad interpretation of ‘public utility’. However,the courts in Malawi have not fully discussed the conceptual difference betweendeprivation and expropriation and the implications for an award (or non-award) ofcompensation: see the Press Trust (Supreme Court) Case and The Malawi Congress Party,LJ Chimango and Dr HM Ntaba v Attorney General and the Speaker of the National Assembly[1996] Malawi Law Reports 244 (Press Trust (High Court) Case).

157 A Eisenberg ‘“Public purpose” and expropriation: Some comparative insights and theSouth African Bill of Rights’ (1995) 11 South African Journal on Human Rights 207.

158 A Eisenberg ‘Different constitutional formulations of compensation clauses’ (1993) 9South African Journal on Human Rights 412. The Malawi Law Commission has observedthat the compensation regime under the Lands Acquisition Act (Cap. 58:04, Laws ofMalawi) is ‘outdated’ as it disregards the market value of property. The LawCommission has recommended an amendment to the Lands Acquisition Act such that‘appropriate compensation’ must undoubtedly mean market value: Malawi LawCommission (n 52 above) 86-95.

159 The rider is that this point is valid in a ‘normal’ economic climate as opposed to aperiod of hyperinflation or deflation.

160 Chaskalson (n 154 above) 137. In jurisdictions without a comparable provision tosection 25(3) of the Constitution of South Africa, compensation will always be aminimum of the market value of the property: See Cultura2000 v Government of theRepublic of Namibia (1993) 2 SA 12 (Namibia). In practice, however, compensation forland reform purposes in South Africa has been based on open market valuation:L Ntsebeza ‘Land redistribution in South Africa: The property clause revisited’ inL Ntsebeza & R Hall (eds) The land question in South Africa: The challenge oftransformation and redistribution (2007).

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Malawi constitutional order are clearly less elaborate on the normativeframework for deprivation and expropriation of property.

In light of the foregoing, the following conclusion can be made in thecontext of land reform in Malawi: The entrenchment of the right toproperty under the Constitution suggests that land reform in the countrycan only proceed under a land redistribution model based on a willingseller/willing buyer approach. This is the case because the property clausesare ahistorical and decontextualised; existing rights of persons in propertyare entrenched under section 209 of the Constitution; land reform isconstitutionally sanctionable where ‘public utility’ is broadly construed tomean a ‘public advantage or benefit’; and in the absence of a provisionsimilarly worded as, for instance, section 25(3) of the Constitution of SouthAfrica, expropriation even for purposes of land reform will be based onmarket valuation. In sum, the Constitution protects existing rights inproperty more strongly than it guarantees the rights of the land deprived toacquire property. While the Constitution makes provision forexpropriation, it is short on details as to whether such expropriation can beeffected for purposes of land redistribution to the land deprived and forcompensation which is less than the market value. This rigid, liberalinterpretation of the property regime has been pervasive in the courts inMalawi.161

2.3.3 Creation of a vibrant land market

The development of a formal land market is one of the key components ofthe Policy. Hence, once the ‘customary’ estate is registered and titled, itmay be made available in the credit market. My assessment, however, isthat this is not possible under the present nature of the ‘customary’ estate.A vibrant market will only emerge if the ‘customary’ estate is freelyalienable subject to, as already pointed out, to existing legislation. It hasbeen observed that the nature of the ‘customary’ estate under the LandPolicy is that it is not freely alienable. At any rate, the emphasis on thedevelopment of a ‘vibrant land market’ may negatively affect the landdeprived through increased insecurity as a result of distress sales, the‘threat of foreclosure’ and the probability of the dominance of landed elitessuch as the Achikumbe in the market. The insecurity will be inevitable in theabsence of enduring strategies to support the livelihood of, for example,post-land redistribution owners under initiatives such as the CommunityBased Rural Land Development programme. I discuss this programme inChapter 5. Suffice it to say that it has been pointed out in Chapter 1 thatpost-land redistribution support services is a problem under market-based

161 Press Trust (Supreme Court) Case; Press Trust (High Court) Case; Mwawa v Jekemu CivilCause Number 883 of 1993 (High Court of Malawi, Principal Registry, Unreported);and Nchima Tea and Tung Estates v All Concerned Persons Civil Cause Number 338 of1998 (High Court of Malawi, Principal Registry, Unreported).

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land reform models. Hence, the conception of the ‘customary’ estate aspresently constituted is problematic.

From the preceding discussion, I contend that the development of aformal land market and the facilitation of access to available arable landare contradictory objectives because of the history and context of the landquestion in the country. A market-based approach to land reform meansthat land is redistributed based on the willing seller/willing buyerapproach. This raises questions about the financial capacity of the state toensure that the land deprived benefit under the model.162 Malawi simplydoes not have such financial capacity.163

Finally, it is clear from section 2.3.2 above that under the Constitution,land reform in the country can only proceed on the basis of market-basedmodels. On this basis, compensation for expropriation can also be at theopen market valuation only. Hence, the resolution of the land questionunder the Policy is undermined because, as it has been observed, thepreferential treatment of land owners under market-based land reformmodels; the need for post-land redistribution support to avoid, amongstother things, distress sales; and the need for sustained programmefinancing entail that weak economies such as Malawi may have to rely onexternal funding to sustain a land reform programme.

2.4 Intervention of the Malawi Law Commission

In October 2002, the Malawi Law Commission received a submissionfrom the Ministry responsible for land matters in the country requestingthe review of existing land legislation and the formulation of a new legalframework for land matters in line with the Policy.164 The requestfollowed the finalisation and adoption of the National Land Policy by thestate. Hence, In January 2003, the Malawi Law Commission empanelleda special Law Commission on the Review of Land-Related Laws undersection 133(b) of the Constitution. The Commission commenced its workin earnest in March 2003. The terms of reference for the Commissionincluded the review of existing land-related legislation with a view todeveloping a new legislative framework for land matters that articulatesthe principles of the Policy. The work of the Commission was funded by

162 Government of Malawi (n 37 above) 29-30. 163 Government of Malawi (n 37 above).164 For the mandate of the Law Commission: section 135 of the Constitution; for the

qualification of special Law Commissioners: section 133(b) of the Constitution; for theentrenchment of the independence of the Law Commission: section 136 of theConstitution; and for publication of reports of the Law Commission: section 135(d) ofthe Constitution. In practice, reports of the Law Commission are published by theCommission itself and are presented to Cabinet and Parliament respectively by theMinister of Justice without any changes. The Government may adopt therecommendations of the Law Commission (usually contained in a draft Bill), with orwithout changes, as a Government Bill.

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the EU. In March 2006, the Commission finalised its Report on the reviewof existing land-related laws; namely the Land Act, the Customary Land(Development) Act, the Local Land Boards Act, the Registered Land Act,the Town and Country Planning Act,165 the Forest Act,166 the PublicRoads Act,167 the Mines and Minerals Act,168 the Land Survey Act,169 theLands Acquisition Act, the Adjudication of Title Act,170 the Wills andInheritance Act,171 the Local Government Act,172 the Malawi HousingCorporation Act,173 the Temporary Control of Premises Act,174 and theInvestment Promotion Act.175

The Commission recommends the enactment of eleven Bills relating tocore or attendant land matters: the Land Act (Amendment) Bill; theRegistered Land Act (Amendment) Bill; the Physical Planning Bill; theForest Act (Amendment) Bill; the Public Roads Act (Amendment) Bill; theMines and Minerals Act (Amendment) Bill; the Land Survey Bill; theLands Acquisition Act (Amendment) Bill; the Local Government Act(Amendment) Bill; the Malawi Housing Corporation Act (Amendment)Bill; and the Customary Land Bill.176 Of these eleven bills, the Land(Amendment), the Registered Land (Amendment), and the CustomaryLand Bills respectively are directly linked to the land question in thecountry.

Under the Land (Amendment) Bill, the Commission recommends twocategories of land: Public land and Private land. Public land will comprisegovernment land as defined under the Policy and what has been describedas ‘unallocated customary land’. Private land will comprise freehold land,leasehold land and the ‘customary’ estate.177 The Commissionrecommends that the ‘customary’ estate under the Policy must be retainedin pursuit of promoting private ownership of ‘customary’ land.178 They re-define the ‘customary’ estate:

‘customary estate’ means any customary land which is owned, held oroccupied as private land within a Traditional Land Management Area undera freehold title and which is registered as such under the Registered Land Act;

165 Cap 23: 01, Laws of Malawi.166 Cap 63: 01, Laws of Malawi.167 Cap 69: 02, Laws of Malawi. 168 Cap 61: 01, Laws of Malawi.169 Cap 59: 03, Laws of Malawi.170 Cap 58: 05, Laws of Malawi.171 Cap 10: 02, Laws of Malawi.172 Cap 21: 01, Laws of Malawi.173 Cap 32: 02, Laws of Malawi.174 Cap 60: 01, Laws of Malawi.175 Cap 39: 05, Laws of Malawi.176 Malawi Law Commission (n 52 above).177 Malawi Law Commission (n 52 above) 11. See also clause 2 of the Land (Amendment)

Bill, 2006 in Malawi Law Commission (in this note) 107-123. 178 Malawi Law Commission (n 52 above) 13.

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They also recommend a new definition of ‘freehold’:

‘freehold’ means an interest in land of unlimited duration which is held underfree tenure;179

The Commission’s recommendation regarding the ‘customary’ estateindividualises (as opposed to privatising) ‘customary’ land tenure. This isthe case because the recommendation leaves no doubt at all that a‘customary’ estate is, subject to existing legislation, freely alienable; and asobserved by Peters and Kambewa, it provides ‘further means’ with whichthe landed elites such as the Achikumbe can secure their interests in land‘possibly at the expense’ of the land deprived.180

Further, the Commission recommends, as a general rule, a minimumland size of 0.5 hectares of arable land per household for the registration of‘customary’ estates. The Commission states:

[T]he Commission agreed that there is need to empower the Minister to makerules to regulate minimum holdings of all types of land that should beregistrable [sic]. The Commission recommends that in the case of customaryestates, the minimum holding should be 0.5 hectares181 to preventfragmentation of agricultural land. It was however agreed that exceptionsshould be made for already existing rights in customary land which are lessthan the proposed minimum and for units which are proven to beeconomically viable but the holding is less than the minimum, such as poultryfarming.182

It is conceded that the Commission envisages situations where interests inland of less than 0.5 hectares may be registered under clause 18 of theCustomary Land Bill. In effect, all interests in land that fall under thedefinition of customary estate may be registered under the Commission’sproposal. Looking at the statistics, by 1996, the average size of availablearable land per household had ‘shrunk’ to 0.8 hectares.183 In any event,some scholars have doubted that land sizes as low as 0.5 hectares can becollateralised in a credit market.184 Beyond this performance in a creditmarket, it has also been observed in Chapter 1 that a decent size ofavailable arable land is crucial to support dignified living.

179 Clause 2 of the Land (Amendment) Bill in Malawi Law Commission (n 52 above) 110-111.

180 Peters & Kambewa (n 53 above) 9.181 0.5 hectares was considered adequate for farm structures which constitute a dwelling

house, animal houses, granaries, latrine and any other structure that may be requiredby the household.

182 On the Law Commission’s recommendation: Malawi Law Commission (n 52 above)38-39, 396-422; and also the arguments by D Booth et al ‘Drivers of change anddevelopment in Malawi’ (2006).

183 Booth et al (n 182 above).184 Peters & Kambewa (n 53 above).

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Hence, the Law Commission’s initiative entrenches the market-basedland reform models and further inculcates the land deprived as theresponsibilised population who would have title to land without therequisite support through capital investment. This would make the landdeprived as new beneficiaries under a market-based land reform modellingvulnerable to distress sales. The possibility of distress sales stems from thefact that land sizes of as low as 0.5 hectares may not be collateralised in acredit market. This status quo is arguably a recipe for the reinforcement ofthis responsibilised individual – the unit of a population – as a source ofcheap wage labour, and as an inchoate producer. The nature of theresponsibilisation is that if the land deprived risk losing their land throughdistress sales, they may have to continue earning their living throughprovision of labour to the Achikumbe who dominate the estate sector.

Another critical point for discussion is that the Commission in its workdid not engage with the issues relating to the conception of the ‘customary’space at all. The category of land referred to as ‘customary land’ under theLand Act and attendant legislation was taken at its face value. There wasno attempt to problematise it in spite of the debates, as shown in Chapter3, relating to the ‘customary’ space in the academy. In the context of thisoversight, the Commission, in my view, incipiently entrenches thesupposed communitarian ethos of the ‘customary’ space.

Under its recommendations, the Commission has also reposedstatutory powers of land administration in chiefs in relation to a sub-category of public land known as ‘customary land’ under the Land(Amendment) Bill. Under clause 27 of the Land (Amendment) Bill, theLaw Commission has recommended that chiefs should have statutory landadministration powers over ‘customary’ land. The exercise of the powersshall be in accordance with the ‘customary’ law in the area of the chief.185

Further, under clause 3 of the Lands Acquisition (Amendment) Bill, achief has power to acquire land for public purposes.186 Finally, the LawCommission has actually developed a whole bill – the ‘Customary’ LandBill – to regulate the ‘customary’ space. Under the ‘Customary’ Land Bill,the role of chiefs with the help of ‘customary’ land committees and landclerks is even more detailed and pronounced.187 It was suggested inChapter 3 that the chief in property discourse under the scheme of colonialcapitalism served a political function. The continued recognition of a chiefunder a legal framework such as the proposed ‘Customary’ Land Bill is toignore this ‘convenient end’ that the chief served under the colonial state,and continues to do so under the postcolonial state. Further, in light of theobservations by Ng’ong’ola highlighted in Chapter 3 that conferring‘rights’ or ‘interests’ to ‘villages’ or ‘tribes’ is problematic, the proposedclause 27 of the Land (Amendment) Bill; clause 3 of the Lands Acquisition

185 Malawi Law Commission (n 52 above) 119.186 Malawi Law Commission (n 52 above) 367.187 Malawi Law Commission (n 52 above) 396-422.

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(Amendment) Bill; and indeed the scheme under the Customary Land Bill,are untenable.

The Land (Amendment) Bill has largely been a mechanistic approachto the land law regime in the country set on entrenching the role of chiefsin land matters in the country. There has been no attempt to engage withthe underlying issues relating to the conception of the ‘customary’ space,the ‘customary’ land tenure, and the institution of chiefs as a network ofpatronage.

The Commission’s recommendations, in some respect replicate the1967 reforms. The Customary Land Bill, for example, proceeds on thesame philosophy that led to the development of the Customary Land(Development) Act in 1967. The Customary Land (Development) Act wasdeveloped on the back of the efficiency argument. Hence, to have a‘customary’ land bill proceed along the lines of the efficiency argument isto remarkably ignore a wealth of scholarship that has critiqued this line ofthought in land reform discourse.188

In the end, the Commission’s initiative is a travesty in light of thenature of the land question in Malawi: McAuslan has correctly pointed outthat land reform in the African postcolony has meant land law reform tocorrect historical inequality that underlies the (African) land question.189

He has argued that the move from ‘policy’ to ‘law’ – precisely legislativedrafting – must not focus on ‘legal technicality’; it must remain a ‘policy’debate throughout the reform process.190 Otherwise, ‘abstractinstrumentalism’ perpetuates the land question in a country.191

2.5 The Green Belt Initiative

On 23 June 2009, President Mutharika, announced that his administrationwill roll out the ‘Green Belt Initiative’ to foster agricultural production inthe country. The Initiative is touted as the programme which will see theutilisation of some 1 million hectares of arable land under irrigationagriculture. This is a strategy that is apparently meant to enhance foodsecurity for the country considering the unreliability of rainfed agriculture.Mutharika says:

Mr. Speaker, Sir, I now turn to the Green belt irrigation and waterdevelopment that have been accorded high priority in the development ofMalawi. This is to reduce our country’s dependence on rain–fed agriculture.From 2009/2010 financial year, Government will start the implementation of

188 Chapter 1, n 36 above.189 P McAuslan Bringing the law back in: Essays in land, law and development (2003) 248-249. 190 McAuslan (n 189 above) 251.191 McAuslan (n 189 above); P Fitzpatrick Law as resistance: Modernism, imperialism,

legalism (2008) 41.

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the Green belt Irrigation Scheme which will eventually bring up to 1,000,000hectares of land under irrigation. This will completely change our economyand will create thousands of new jobs and new investment opportunities.

The Green Belt Programme will utilise water from Lake Malawi, LakeChirwa and from the perennial rivers, including Shire, Bua, Ruo, Dwangwa,and South Rukuru to enhance the country’s production of a variety of cropssuch as maise, rice, wheat, legumes, beans, peas, sunflower, and sugarcane.Special attention will be given to rice in order for Malawi to assist inalleviating world food shortages. The Programme will also focus on livestockas well as fish production.192

The Green Belt Initiative is an ambitious statement of intent. The stateclearly wants to curb the dependence on rainfed agriculture in the countryand move on to irrigation agriculture. Further, the transition will bringabout 1 million hectares of arable land under irrigation.

The magic figure of 1 million hectares of arable land under the GreenBelt Initiative raises more questions than it answers. Where does it comefrom? What is its basis? If the Presidential Commission and the landutilisation studies did not definitively confirm the size of available arableland in the country, the magic figure of 1 million hectares of arable landunder the Initiative must be subjected to deeper scrutiny.

From President Mutharika’s statement, we are told that the Green BeltInitiative is an animal husbandry and crop husbandry project. It willsubject 1 million hectares of land to irrigation. As an animal husbandryinitiative, it will promote livestock rearing and fish production. As a crophusbandry initiative its focus will be on maize, rice, wheat, legumes, beans,peas, sunflower, and sugarcane. The President also states: ‘Specialattention will be given to rice in order for Malawi to assist in alleviatingworld food shortages’.193

In March 2010, a first draft of the Government of Malawi, Green BeltInitiative Paper (GBI Paper) states, in part, as the rationale of the Initiative:

The Green Belt Initiative … aims at intensifying irrigation farming, livestockdevelopment and fisheries development [.] The Initiative aims at using theavailable abundant water resources for irrigation farming thereby hedgeagainst the effects of climate change on food and nutrition security.194

This is part of what has been termed the ‘green revolution’ aimed attransforming Malawi from ‘a predominantly consuming and importingcountry’ to ‘a producing and exporting country’.195

192 President Bingu wa Mutharika, State of the Nation Address, 23 June 2009, 11.193 As above.194 Government of Malawi Green Belt Initiative Paper (2010) vi.195 GBI Paper (n 194 above) 3.

116 Chapter 4

The GBI Paper further states:

The GBI will be implemented throughout the country where exists vast arableland and perennial sources of water suitable for irrigation developmenttargeting a coverage of about one million hectares of land. Concentration willbe along Lake Malawi and the perennial rivers right from Chitipa to the ShireValley offering already existing interventions (irrigation schemes).196

Under the Initiative, the state looks at it as the conduit towards sustainableeconomic growth and development in tandem with the national povertyreduction strategy – the Malawi Growth and Development Strategy and itssuccessor the Malawi Growth and Development Strategy II – through‘reducing poverty, improving livelihood and sustainable food security atboth household and national level’.197 This will be done through increasedcrop, livestock and fish production.198

There are a number of specific objectives under the Initiative:increased crop, livestock and fish production; increased agriculturalexports; increased foreign exchange earnings; increased householdincomes; improved value chain linkages and operations; increased privatesector participation in agricultural production; value-added to agriculturalproduce; reduction of rural to urban migration, amongst other things.While the Initiative is yet to be fully implemented, the GBI Paper statesthat within the first five years of the Initiative, it is envisaged that irrigationfarming area will rise from 78 000 hectares to 1 million hectares.199

The Initiative purports to have ‘two implementation arrangements’focusing on smallholder and commercial farmers; where the commercialfarmers shall serve as the ‘models’ of the former. The policy statement isalso that the Initiative will be financed by the state, development partnersand private sector.200

In May, 2011, the Green Belt Development Initiative: Strategic Plan, 2011-2016 (GBI Paper II) was finalised.201 The rationale under GBI Paper II

196 GBI Paper (n 194 above) vii, 4.197 GBI Paper (n 194 above).198 As above.199 GBI Paper (n 194 above) vii, 4-5.200 GBI Paper (n 194 above) viii, 20.201 GBI Paper II was developed by a Task Force of 9 Malawian professionals: Mr Cliff

Chiunda from the Ministry of Development Planning and Cooperation; Mr ElliotPhiri from the Office of the President and Cabinet; Mr Edwin Kanyoma from theMinistry of Agriculture and Food Security; Mr Charles Mwalabu and Mrs ChimangoMlowoka from the Ministry of Irrigation and Water Development; a Mr Makuwirafrom the Department of Fisheries in the Ministry of Agriculture and Food Security;Professor Emmanuel Kaunda and Dr TN Gondwe, both from the Department ofAnimal Science, Bunda College of Agriculture, the University of Malawi; and MrLovemore Ndege from the Malawi Investment Promotion Agency. A Mr R.N.Kachule from the Centre for Agricultural Research and Development, Bunda Collegeof Agriculture, the University of Malawi facilitated the drafting and developmentprocess of GBI Paper II: GBI Paper II, 5.

Global-local policy linkage, responsibilisation and the land question 117

remains a shift to irrigation agriculture for increased crop, livestock andfish production.202 This is prompted by the motivation that Malawibecomes an export producing country.203 The policy states:

The Green Belt Initiative (GBI) is a brain child of His Excellency thePresident Ngwazi Professor Bingu wa Mutharika. It was conceived with apurpose of attaining food security, and creating employment and wealthamong Malawians through increased agricultural production andproductivity, enterprise development, value addition and increased exports. Itseeks to consolidate the gains already registered nationally through a FarmInput Subsidy Programme (FISP) which targets the poor and low incomehouseholds. The FISP enables the resource-poor smallholder farmers toaccess the inputs at subsidised costs. At national level, the FISP hastransformed Malawi from a food-deficit and importing nation to a foodsurplus and exporting one since 2005/2006. Consequently, Malawi has beenhailed as the food basket for Africa because of the FISP. The Green BeltInitiative therefore aims at consolidating the gains realised from the previousinitiatives of Government and draws lessons from international initiativessuch as the Indian Green Revolution, the Greener Morocco and the Alliancefor a Green Revolution for Africa (AGRA). For this reason, Malawi isconsidered as the birth place of African Green Revolution. In the long run theGBI is envisaged to be a gradual exit strategy for the FISP.204

Further, the GBI Paper II retains the specific objectives andimplementation strategy of the GBI Paper. Hence, for example, the dualimplementation in relation to smallholders and commercial farmersrespectively is retained on the same basis that ‘commercial farms will bemodels to smallholder farmers’.205 However, while the GBI Paper II alsodoes not clearly state the implementation roll-out and is also committed toachieving an area of 1 million hectares under irrigation agriculture, it statesthat the first five years of the Initiative will see irrigation agriculturecovering 200 000 hectares of ‘potentially irrigable agricultural land’.206

GBI Paper II also emphasises that civic awareness campaigns targetingsmallholder farmers shall be put in place to relay the message that theInitiative is for their (the smallholder farmers) ‘benefit’.207

On the programme financing, the policy statement here is:

Government in partnership with development and cooperating partners andthe private sector will collaborate in financing the programme. In terms ofgovernment financing, different sectoral ministries will develop their annual

202 GBI Paper II (n 201 above) 7, 10.203 GBI Paper II (n 201 above) 11.204 GBI Paper II (n 201 above) 10. The Green Belt Initiative and other local interests have

since visited the Punjab Agriculture University to explore the possibility of staff underthe Initiative and beyond attaining further education at the University: ‘Malawi 47thIndependence Anniversary Special Issue, Volume 2, Issue 3, July, 2011, 44-46(accessed on 6 February, 2015).

205 GBI Paper II (n 201 above) 15.206 GBI Paper II (n 201 above) 11.207 GBI Paper II (n 201 above) 15.

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work plans and budgets which will be consolidated by the secretariat.Management of the funds will follow the public finance managementprocedures. The government will engage development partners to support theGBI in line with principles of the Paris Declaration. Development partnerswill be free to choose components of the Initiative that they wish to support.Private sectors’ financing will constitute direct investment in the selected GBIsites and through Public Private Partnerships.208

Indeed, it has been reported in the local press that the Initiative hasobtained a loan of about USD45.5 million from the Export-Import Bankof India.209 Further, the state has obtained a line of credit of almostUSD100 million from the Federal Government of India; out of whichUSD30 million was immediately available.210 In total, USD75.5 million isavailable to the state. The question remains: At what cost is the moneysavailable?

There are a number of ‘red flags’ under the Green Belt Initiative thatought to be highlighted here: President Mutharika spoke of a focus on riceproduction to alleviate ‘world food shortages’; GBI Paper and GBI Paper IIpoint to the need for a green revolution in order to achieve poverty reduction,increased economic growth at household and national level; a dichotomy ofcommercial-smallholder farmer where the commercial farmer is the model forthe smallholder farmer. There is the quest for hedging climate change,attainment of food and nutrition security, value addition and value chain linkages.Indeed, the Initiative assumes that there is 1 million of ‘potentially irrigableagricultural land’ in Malawi which must be utilised. Is the language underthe GBI Paper and the GBI Paper II familiar?

The language under the GBI Paper and the GBI Paper II echoes whatothers have called the ‘convergence of global crises in food, energy,finance, and the environment’.211 Indeed, the World Bank has developedan all-encompassing report that seeks to prescribe interventions in thefood, energy, finance and environment sectors.212

In light of the irresolution of the various policy flaws that relate to theland question in the country, there may be challenges in theimplementation of the Green Belt Initiative. The principal basis of thechallenges is the fact that there has been no impetus to locate the GreenBelt Initiative within the land question. The land reform initiatives have

208 GBI Paper II (n 201 above) 15.209 ‘Concept, strategic plan for green belt project in place,’ The Daily Times 25 August

2011.210 The Daily Times (n 209 above). It has been further reported in the local press that the

Government of Malawi has since acquired some 177 tractors, 48 planters, 177harrows, 177 ploughs, 90 trailers, 177 ridgers and 144 maize shellers, all fromcompanies in India: ‘Green belt tractors arrive,’ The Nation 26 October 2011.

211 S Borras Jr et al ‘Towards a better understanding of global land grabbing: An editorialintroduction’ (2011) 38 Journal of Peasant Studies 209.

212 World Bank Rising global interest in farmland: Can it yield sustainable and equitable benefits?(2010).

Global-local policy linkage, responsibilisation and the land question 119

not addressed the historical continuity that underpins the land question inthe country. Put another way, land relations in Malawi are a story ofcontinued land alienation; with the landholdings amongst the landdeprived shrinking. Hence, the suggestion that 1 million hectares of arableland will be available under the Green Belt Initiative is tenuous. This is thecase particularly because the GBI Paper and the GBI Paper II is devoid ofany political economy analysis of the availability of land under theprogramme: Who wins? Who loses? Why do others win and why do otherslose? What are the political nuances – the power dynamics – under theprogramme? These are important questions and the analysis of the issuesis glaringly missing under the GBI Paper and the GBI Paper II. Forexample, in the short term, the state has acquired some 6 000 hectares ofland in central Malawi.213 The assertion is that this piece of land acquiredhas been idle and may as well be utilised under the Initiative. This isproblematic since the various state-initiated studies have establishedenormous land pressure in the country. Further, the state hasacknowledged that lower southern Malawi has great potential forirrigation agriculture. The two main prohibiting factors have historicallybeen the capital investment required for any irrigation project in the area,and, second, the socio-political impact of displacing the communities inthe area. Notwithstanding these bottlenecks, in the medium term, the stateis determined to roll out irrigation agriculture in lower southern Malawi.This project covers an area 43 000 hectares of land. While the area isheavily populated, it is not clear how the state will mitigate the socio-political effects of the displacement of the communities in the area.214

In the end, it is not very clear from the GBI Paper and the GBI PaperII how, where and by whom is the Initiative going to embrace up to 1million hectares of ‘potentially irrigable agricultural land’. It is a disturbingomission that an Initiative that relies on land makes no reference to thediscourse on land, land reform or land law reform available on Malawi.Neither the GBI Paper nor the GBI Paper II make reference to thePresidential Commission Report, the reports of the three land utilisationstudies, the National Land Policy, and the Report of the Law Commissionon Land–Related Laws.

This lack of synergy under the GBI Paper and GBI Paper II with thestatus quo leads to some telling consequences: First, the current Initiative

213 The state has acquired the land in central Malawi district of Salima from PressAgriculture Limited (a fully-owned Malawi private company registered under thecompany law of Malawi). The land was acquired under the Lands Acquisition Act. Asalready pointed out, the Act empowers the Minister responsible for land matters toacquire land for the state in the public interest upon payment of compensation. TheLands Acquisition Act does not specify whether the compensation is based on themarket value or not. It is not clear whether the state paid Press Agriculture Limitedany compensation on a market value basis: Key Informant Interview: 27 January2012.

214 Key Informant Interview: 27 January 2012. The state intends to roll out the Initiativein the lower southern Malawi districts of Chikwawa and Nsanje.

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makes a (fatal) assumption on availability of ‘potentially irrigableagricultural land’. The scholarship on the land question in the country hasconcluded that this is not the case. At the very least, three land utilisationstudies that the state itself commissioned in the 1990s for this purposefailed to definitively established the size of available arable land in thecountry. Second, the lack of synergy means that the conception of the‘customary’ space is assumed, if not taken for granted. I have arguedelsewhere that the notion of a chief and the ‘customary’ space serves apolitical function and is inconsequential at property law.215 Thisunderstanding of the ‘customary’ space is crucial in the interpretation ofthe political economy of land reform in a weak economy such as Malawi.Third, the Initiative assumes that the conception of the right to property inland in the country has been clarified and ascertained. An examination ofthe National Land Policy or indeed, more broadly, the land question,shows that the question of the right to property in land remains strenuous.At a more practical level, the Ministry responsible for land matters in thecountry has been trying to operationalise the ‘customary estate’ under theNational Land Policy without clarifying the deep lying conceptual frailtiesof the Policy. It is in this context that there is a disjuncture between theInitiative and, broadly, the land question in the country.

3 Final word

In this Chapter, it has been demonstrated that while the report of thePresidential Commission and the three land utilisation studies were toutedas the informed basis of the Land Policy, there is a clear disjuncturebetween the report of the President Commission and the three landutilisation studies, on the one hand, and the Policy on the other.

One of the objectives of the three land utilisation studies was toascertain the area of available arable land in the state for purposes of theland reform. However, besides a blanket statement on total availablearable land in Malawi in the Presidential Commission’s Report – thatarable land constitutes some 5.3 million hectares,216 the three landutilisation studies did not ascertain in definitive terms the hectares of(available) arable land in the various sectors and the levels of landutilisation in those sectors.

What also emerges from the Presidential Commission’s Report andthe three studies is a reluctance to historicise and contextualise thestrategies for the resolution of the land question in the country. Indeed,looking at the Presidential Commission’s recommendations and the threestudies, it is difficult to fathom how those recommendations will enhancethe resolution of the land question in the country. The status quo remains

215 Chapter 3 of this book generally.216 This is the recurring figure pertaining to arable land in Malawi.

Global-local policy linkage, responsibilisation and the land question 121

– in the language of the Presidential Commission – for ‘economic andpolitical expediency’. This is a euphemism that raises a lot of speculationbut belies analysis.

The three land utilisation studies, particularly the Estate LandUtilisation Study, conclude that land redistribution would negatively affectthe value added to the economy. In my view, the three studies placed lessemphasis on the issue of access to available arable land, especially theasymmetry between the landed elites (comprising the Achikumbe), on theone hand and the land deprived, on the other. In the discussions on theexisting land relations, the studies focussed on the relationship between theAchikumbe and the land deprived in the prism of landlord and tenant oremployer and employee. Finally, from the studies; the lack of viability ofland redistribution as a strategy to resolve the land question begs thequestion whether there are strategies in place by the state to ease landpressure through the development of a viable non-agricultural economicbase.

The Land Policy has embraced the market-based land reform models.The innovations under the Policy, particularly the ‘customary’ estate, donot demonstrate an appreciation of the critique that has been developed inland reform discourse regarding the efficiency argument. In any event, theconception of the ‘customary’ space is not problematised at all under thePolicy.

The intervention of the Law Commission also reveals the concernsthat have been highlighted in the preceding section regarding the LandPolicy. Further, the intervention shows the following: A straightjackettranslation of land policy to land law in Malawi is perilous, as it ignores anumber of important considerations, such as the macro-economic debateson the role of land in the political economy of the country, and whetherland reform must support the estate sector or a smallholder sector (or both)for the country’s agricultural policy direction. Furthermore, it does notaddress the question whether there is a policy synergy between the landand macro-economic frameworks respectively.

Regarding the Green Belt Initiative; the Initiative proceeds on theassumption of the availability of 1 million hectares of arable land. Thisassumption is not supported by any empirical evidence. Second, there islack of policy synergy between the Initiative and prior land reforminterventions. Third, the language of the GBI Paper and GBI Paper II andthe absence of political economy analysis of land relations in the country –all these – suggest that the Initiative is yet another instance of hegemonicresponsibilisation.

Further, in the context of hegemonic responsibilisation, it must benoted that the country’s development partners need not exert ‘direct’influence beyond the funding of the various policy initiatives. What is

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crucial is what Braithwaite and Drahos have described as ‘modeling’. Thisis based on what they call a ‘globalisation of regulation’ through ‘norms,standards, principles and rules’.217 This resonates with Shamir’s idea of a‘market of authorities’ and also fits in with the range of multiform tactics’under Foucauldian governmentality.218 Modeling is implemented by‘model missionaries’ and ‘mercenaries’ located at the centre and aperiphery such as Malawi.219 Hence, the policy intervention is skewedtowards market-based land reform modelling. This outcome reveals an‘embeddedness’ with the conception of market as value.220

In sum, the global-local macroeconomic linkage undermines theresolution of the land question in the country. The responses to the landquestion so far overlook the nation’s history and context, and exaggeratethe importance of the centrality of market as value in land reform.221 Thedominance arises in the context of the centrality of market as value indevelopment discourse. The promise of the rhetoric of a fair redistributionof land to the land deprived has been undermined by the lack of concreteproposals to address the needs of the land deprived. In Chapter 5, I look atthe interaction between the key constituencies in the land reform in thecountry and how land relations shape their interaction; particularly withina framework of hegemonic responsibilisation. I discuss the interests of thekey constituencies under what I have called the ‘multiverse’. I examinehow these interests can or cannot lead to the resolution of the land questionin the country.

217 J Braithwaite & P Drahos Global business regulation (2000) 10.218 R Shamir ‘The age of responsibilisation: On market-embedded morality’ (2008) 37

Economy & Society 7; and the discussion of governmentality in Chapter 2 of this book.219 Braithwaite & Drahos (n 216 above) 587. See also A Paliwala ‘Privatisation in

developing countries: The governance issue’ (2000) 1 Law, Social Justice & GlobalDevelopment Journal available at http://elj.warwick.ac.uk/global/issue/2000-1/paliwala.html (accessed 30 January 2010); and A Manji The politics of land reform inAfrica: From communal tenure to free markets (2006), on ‘networks’ in land reform.

220 Braithwaite & Drahos (n 216 above) 14; Shamir (n 218 above); and the discussion ongovernmentality in Chapter 2 of this book.

221 For a critique on the absence of history and context in market economics: G Palermo‘Misconceptions of power: From Alchian and Demsetz to Bowles and Gintis’ (2007)92 Capital & Class 147.

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In this Chapter, I look at the interaction of the key constituencies in landreform in Malawi; namely, the state; the Bretton Woods Institutions; theAchikumbe; and the land deprived, and the implications of their parochialinterests for the resolution of the land question. The socio-economicsnapshot of the land question is that as much as 85 per cent of theMalawian human population earn their living as subsistence, tenantworkers; that the intercensal population growth between 1998 and 2008has been as high as 32 per cent; that landholding is as low as 0.16 hectareper capita for the ‘ultra poor’ and 0.28 hectares for the ‘non-poor’; and thatthe land deprived (as the constituency of households with access to lessthan 0.5 hectares of arable land) account for 10.48 million people in thecountry.1

In Chapter 2, I reiterate the Foucauldian argument thatgovernmentality involves the immersion of the economy into family orpolitical practice. This immersion has meant that the regulation of thepopulation should involve the disposition of ‘things’; or rather the relationof ‘men’ and ‘things’. This disposition has led to the adoption of a range ofmultiform tactics; and these can be law, policy, codes of conduct,standards, guidelines and proposals for reform. Regardinggovernmentality and a land question in a country: Foucault states that thefocus is on production.2 Hence, under the policy of grains andphenomenon of scarcity, ‘man’s greed’ or ‘the need to earn more’prevails.3 If production is the main focus under the phenomenon ofscarcity, the producers in this analysis constitute the state, the BrettonWoods Institutions and the Achikumbe. The land deprived form theconstituency of cheap, wage labourers, and inchoate producers. These

1 Chapter 1 generally. These figures may be higher at the time of writing. The NationalStatistical Office has not published official figures beyond 2008.

2 Foucault Security, territory, population: Lectures at the Collège de France, 1977-78 transG Burchell (2009).

3 Foucault (n 2 above) 341-343.

5CHAPTER A MULTIVERSE OF INTERESTS

AND THE LAND QUESTION

124 Chapter 5

constituencies and their roles are made possible through the process of‘normation’ which is in turn possible through biopower.4

Further, I argue that the interaction amongst the constituencies iscomplicated. Hence, the central argument in this Chapter is that themultiverse of the interests of the state, the Bretton Woods Institutions, theAchikumbe and the land deprived undermines the resolution of the landquestion in Malawi. The multiverse5 emerges through the interaction ofthese constituencies. The idea of the multiverse here emphasises theensemble of interests of the key constituencies in land reform in thecountry. Indeed, this ensemble lies in the competing and parochialinterests that are manifested through the interaction of theseconstituencies. The multiverse requires a meticulous triangulation of thevarious interests at play at the level of law and policy. This multiverse ofinterests creates enormous challenges for land reform that proceeds on arule-based, positivist approach to law as a catalyst for social engineering.The triangulation is essential in light of the varying agenda that scholarshave pointed out exist in land reform discourse and practice.6 Thecompetition amongst the social, economic and political perspectives toland reform has meant that land reform discourse and practice is oftendisordered.7

I discuss the interaction of the various constituencies at four relationallevels: The relationship between the state and the Achikumbe; the state andthe land deprived; the Achikumbe and the land deprived; and finally, theintra-‘community’ dynamics. These dynamics require an analysis of thepolitical institutions of the ‘community’, especially the chiefs, and theimplications of their vested interests for the resolution of the land questionin Malawi. The dynamics also focuses on the complication that emergesamongst the land deprived. This tiered analysis is not to suggest that thereis a lack of ‘influence’ across the various relationships. It merely serves tohighlight the interests of the various constituencies under the on-going land

4 Foucault (n 2 above) 55-86.5 The idea of multiverse has been appropriated from multiverse theory in quantum

physics. In broad terms, multiverse, in quantum physics, relates to the possibility of theexistence of more than one universe in the conception of the ‘cosmos’. Bernard Carrstates: ‘[T]he term ‘universe’ is usually taken to mean the totality of creation, [there is]the possibility that there could be other universes (either connected or disconnectedfrom ours) in which the constants of physics (and perhaps even the laws of nature) aredifferent. The ensemble of universes is then sometimes referred to as the‘multiverse’[.]’: B Carr (ed) Universe or multiverse? (2007) x; and D Deutsch ‘Thestructure of the multiverse’ available at http://xxx.lanl.gov/ftp/quant-ph/papers/0104/0104033.pdf (accessed 24 June 2011). The term itself is a coinage of WilliamJames; made as early as 1895: W James The will to believe (1895) cited in the OxfordEnglish Dictionary (2003). The idea of ‘multiverse’ has engaged scholars of cosmology,philosophy, theology and indeed writers of fiction.

6 S Moyo ‘Land in the political economy of African development: Alternative strategiesfor reform’ (2007) XXXII Africa Development 1.

7 Moyo (n 6 above).

A multiverse of interests and the land question 125

reform in the country. The analysis of each relational level highlights theprocesses of ‘conduct’ and ‘counter-conduct’ underway.

1 The state and the Achikumbe

The nature of the so-called ‘fast track’ land reform in Zimbabwe has, in myview, prompted a more proactive approach to land reform in Malawi fromthe Bretton Woods Institutions and its other development partners. Inturn, the approach has influenced the nature of the relationship betweenthe state and the Achikumbe.8

In the run up to the 1993 referendum and the 1994 general elections,9

the call for land reform based on the land restitution model was either agenuine rallying cry to revolutionise land relations in the country byensuring that the land deprived have improved access to arable land or itwas mere campaign posturing on the part of the proponents for politicalmileage. If the quest for land reform based on the land restitution modelwas legitimate, it soon evolved into land distribution model based on awilling seller/willing buyer approach in conformity with the trend underthe ‘new wave of land reform’ at the turn of the 1990s. However, if the callwas mere politicking, it is more revealing of the vested interests of theproponents of multipartyism as part of the Achikumbe. This change in therhetoric arises from the involvement of the Bretton Woods Institutions andthe country’s development partners in the development of the Land Policythrough, most notably, the EU, the DFID and the USAID.10 Theintervention in the state was apparently crucial to avoid ‘anotherZimbabwe’; where the state unleashed a fast-track land reform programmeto ‘repossess’ predominantly white-owned commercial farms.11 In view ofthe violence that ensued under Zimbabwe’s programme, it is possible tosuggest that the intervention of the Malawi’s development partners wascalculative, Foucauldian conduct which was aimed at the entrenchment ofthe status quo regarding land ownership in the country. This has meantthat purportedly ‘excess’ land from the Achikumbe is only available to theland deprived through the land redistribution model based on a willingseller/willing buyer approach. Put another way, the intervention here

8 Moyo & Yeros ‘Land occupations and land reform in Zimbabwe: Towards theNational Democratic Revolution’ in S Moyo & P Yeros (eds) Reclaiming the land: Theresurgence of rural movements in Africa, Asia and Latin America (2005) 165.

9 FE Kanyongolo ‘Land occupations in Malawi: Challenging the neoliberal legal order’in Moyo & Yeros (n 8 above) 118.

10 Cf A Manji The politics of land reform in Africa: From communal tenure to free markets(2006) 62-65 on the role of bilateral donors.

11 Key Informant Interview: 4 June 2008; B Chinsinga ‘Exploring the politics of landreforms in Malawi: A case study of the Community Based Rural Land DevelopmentProgramme (CBRLDP)’ IPPG Discussion Paper Number 20 (2008) 4, 9-10; and Moyo& Yeros (n 8 above).

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seeks to ‘protect’ the estates owned by white commercial farmerspredominantly located in the Shire Highlands of southern Malawi.12

The ostensible sincerity of the quest for land reform based on the landrestitution model is depicted in the nature of parliamentary debates duringthe First Meeting of the 30th Session of the Proceedings of Parliament.During the nine days of this Session, the issue of the land question in thecountry was raised a total of twenty times. In his Inaugural State of theNation Address to Parliament, the then newly elected State President,Bakili Muluzi, said:

I would like to remind the House of the fact that land is, next to man, themost important asset a nation may have. With land to live and work on, menand women may be able to translate their nation’s dream and aspiration intoreality. In this regard, Government is committed to ensuring that land isdistributed fairly and put to economic use.13

Indeed, the legislators contributing to the debate in this period, who werepredominantly from southern Malawi, adopted a firebrand approach toaddressing the land question. The incumbent Minister responsible for landmatters buttresses the point:

Malawi is an agrarian economy and land is the main factor of production.Unfortunately, for 30 years we have had no comprehensive national landpolicy. Consequently, land was distributed on [an] ad hoc basis. There is in thiscountry […] a conflict between the smallholder on one hand and the estatesector, the wildlife, the game reserve on the other. We need a solution to thisconflict. The situation prevalent now, is that a large percentage of thepopulation has no access to land especially in areas such as Thyolo, Mulanje,Zomba et cetera. Until Malawi makes land available to smallholders, we shallnever free ourselves from poverty. Access to arable land […] by thesmallholders will ensure economic and food security and reduceunemployment problems.

I would therefore, Mr. Speaker, Sir, like to endorse word for word HisExcellency’s statement on 30th June, that the Government is ‘committed toensure that land is distributed fairly and put to economic use’. In this regard,my Ministry […] is undertaking to review the Land Legislations and come upwith a comprehensive land policy.

[…]

I would like […] to make use of this opportunity to send an open invitation toall interested individuals and groups to come forward with suggestions andany land related problems in a spirit of open debate.14

12 Key Informant Interview: 4 June, 2008.13 Government of Malawi Proceedings of Parliament, 1st Meeting, 30 June-8 July 1994

(emphasis added).14 The Statement of Honourable Alhaji Itimu in Government of Malawi (n 13 above)

670-671.

A multiverse of interests and the land question 127

The contributions to the debate on land reform based on a landrestitution model changed to that of a land redistribution model based ona willing seller/willing buyer approach. However, while the officialrhetoric has suggested that the Land Policy had been prepared in a careful,balanced manner; that tenure insecurity would be removed; that landtransactions would be speedy and transparent; that inadequacies of theexisting laws, retrogressive customary beliefs, delays in landadministration, arbitrary application of the public interest criteria,constraining inheritance laws and uncertainty regarding the strategies fordealing with land pressures all operated to discourage needed investmentand the nation’s ability to eliminate poverty.15 Due to the nature of theproperty clauses under Malawi’s Constitution, and the ‘overbearance’ ofthe country’s development partners has meant that the change in therhetoric from a land restitution model to a land distribution model basedon a willing seller/willing buyer approach was inevitable.16

Hence, the call for land reform based on the land restitution model isa political ruse if looked at in the context of path dependence.17 The statehas acquired estates from erstwhile white owners for the purporteddistribution to the land deprived. The so-called fair redistribution has beenmarred by cronyism. While the cronyism has not been accompanied byviolence that has, for example, engulfed Zimbabwe, three rather extremecases of the cronyism in Malawi are worth highlighting: The first caseinvolves the late President Bingu wa Mutharika. The President ‘bought’the Ndata Estate in Thyolo, southern Malawi. Thyolo is one of the districtsin southern Malawi which has colossal problems of access to arable landfor the land deprived. At a focus group discussion, a discussant observes:

To the north of this village, there is Ndata Estate. We had heard rumours thatthe Government has bought the estate to redistribute land to the landless.Later, we heard that the President has bought Ndata [Estate]. We weresurprised that the President has bought an estate for himself considering thatthere is no land for farming here.18

The second case involved a former senior Cabinet minister under theMuluzi Administration. In 1997, the state acquired a tea estate – ChitakaleTea Estate – in Mulanje, southern Malawi from erstwhile white owners forland redistribution to the land deprived. The redistribution of the landunder the estate was overtaken by efforts by Brown Mpinganjira, using hisinfluence as a senior Cabinet minister at the time, to purchase the estate in

15 Government of Malawi Proceedings of Parliament, 35th Session, 2nd Meeting, 24 October-11 November 1994.

16 Government of Malawi (n 15 above) 11.17 The concept of ‘path dependence’ states that if a particular constituency has benefited

from a historical construction of the nature of ownership and distribution of wealth,the beneficiary constituency will resist change and seek to entrench the status quo:D North Institutions, institutional change and economic performance (1990) cited inChinsinga (n 11 above).

18 Focus Group Discussion: 30 April 2008.

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his individual capacity. The state only took steps to repossess the estate inquestion when Mr Mpinganjira fell out with the Muluzi Administration.The repossession was the subject of litigation in the case of Brown JMpinganjira v Chitakale Tea Estate Limited and the Attorney General.19

The third case involves a conglomerate of private business, MulliBrothers Limited. The directors of this conglomerate were closelyconnected to President Mutharika; they belonged to the same politicalparty, one of the directors was a Member of Parliament and was a Cabinetminister under the Mutharika Administration, and the directors and thelate President Mutharika were from the same ethnic group. Theconglomerate bought Chitakale Tea Estate Limited as a private entity.While the sale of the Estate was conducted under a privatisationprogramme run by the state, the fact that Chitakale Tea Estate has still notbeen made available to the land deprived buttresses the self-interestamongst the politicians as, simultaneously, part of the state machinery andthe Achikumbe.20

The political cronyism is also evident at the regional context. Inrelation to Zimbabwe, Moyo and Yeros have discussed the blatantpolitical cronyism practised by the state under the fast track land reformprogramme in that country. The beneficiaries under the programme havebeen members of the ruling political party and members of the warveterans’ grouping.21

The relationship between the state and the Achikumbe has beenambivalent. At one level, the intervention of the Bretton WoodsInstitutions and the agents of the country’s development partners hasbenefited the Achikumbe and has meant that the prospects of a land reformbased on the land restitution model have been foreclosed. I have pointedout that land reform interventions under a land redistribution model basedon the willing seller/willing buyer approach favours the Achikumbe; it is aseller’s market.22

At another level, the key players in the state’s political hierarchy arethemselves the Achikumbe such that the nature of the land reforminterventions – as a form of Foucauldian conduct – is really in disfavour of

19 Civil Cause Number 682 of 2001, High Court of Malawi, Principal Registry(Unreported); U Engel & N Gomonda Prospects of crisis prevention and conflictmanagement in Mulanje District, Malawi (Southern Region) (2001) 38-39; and IIRD Finaldraft report for the Makandi Estate case study ( 2005).

20 Key Informant Electronic Mail: 10 October 2009; and Anonymous ‘Malawi: The riseand rise of ethnic politics’ Africa Confidential 20 November 2009, Volume 50, No 23, 9-10. On the estate’s initial ownership: Engel & Gomonda (n 19 above) 38; and on itsprivatisation: See Privatisation Malawi http://www.privatisationmalawi.org/index.php?option=com_content&task=blogcategory&id=31&Itemid=151&limit=5&limitstart=5 (accessed 25 January 2010).

21 Moyo & Yeros (n 8 above).22 S Moyo & P Yeros ‘The resurgence of rural movements under neoliberalism’ in Moyo

& Yeros (n 8 above) 8.

A multiverse of interests and the land question 129

the land deprived. To the extent that the key players in the politicalhierarchy of the country are also the Achikumbe, their impact on landrelations gravitate towards entrenching the networks with the globalcommodity chain through a liberal, abstractionist interpretation of theright to property that underpins market-based land reform models such asa land redistribution model based on a willing seller/willing buyerapproach.23

At the same time, however, there is a self-serving form of counter-conduct that the Achikumbe display in their relationship with the state. Thishas been most pronounced under the Community Based Rural LandDevelopment Project; popularly known as the ‘Kudzigulira Malo’ project.Under the project, the state provided grants to the land deprived topurchase land from Achikumbe under a land distribution model based onthe willing seller/willing buyer approach. I discuss the project in moredetail in the next section.

Under the project, the state received zero offers for the purchase ofland from the estate sector in Mulanje and Thyolo; the sending districtsunder the project. What have been on the table from the estate sector were,technically, invitations to treat whereby the Achikumbe in the sectoroutlined conditions under which they were to ‘offer’ their land to the landdeprived. More critically, the Achikumbe demanded that the post-landredistribution owners were to continue growing plantation crops,particularly tea. Second, the Achikumbe, as previous owners of the land,would have the first option to buy the tea.24 The conditions were the quidpro quo for any land alienation on the part of the Achikumbe. Theconditions here are interesting because it is evident that the Achikumbe didnot want to disturb the global commodity chain by the mere fact that theyhave ceded some of their arable land. The objective in global commoditychain analysis is to establish ‘how local, regional and global institutions,policies and other factors’ affect each stage in the chain.25 In theagricultural sector, this requires the demonstration of the coordination ormanagement of ‘the entire upstream commodity chain, from sourcing ofraw materials and sub-components to delivery of the final product’.26 Theconvenient end is a particular type of product for a ‘niche’ market whichdemands a pre-configured producer to deliver on the set ‘standard’ ofproduction. Hence, in the Malawian scenario, the Achikumbe continue tohold on to their landholding on the basis of the efficiency argument. Theresponsibilisation here is such that the Achikumbe retained ownership tomaintain a certain level of production at the local level of the commodity

23 Manji (n 10 above) 65-72 on her discussion of the global land law reform network.24 Key Informant Interview: 24 April 2008.25 A Paliwala ‘WTO and the banana farmers: Commodity chains and the globalisation

of economic regulation’ Paper presented to the Law and Anthropology Workshop, atBirkbeck College, London, 2004 (on file with the author).

26 B Daviron & P Gibbon ‘Global commodity chains and African export agriculture’(2002) 2 Journal of Agrarian Change 137 143.

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chain rather than relinquish ownership to a perceived inefficient producer– the land deprived – who may negatively affect the chain.

In the case of ‘offers’ from the Achikumbe in Machinga and Mangochi– the receiving districts under the project – it has been observed that landwas unavailable for redistribution because the Achikumbe held out for avery high price or that in relation to one estate, the owner(s) could notagree on the appropriate sale price.27 In cases where a sale had beenfinalised, the quality of the land was very poor for viable agriculturalproductivity.28 The observation on poor quality land is not peculiar toMalawi. Moyo and Yeros make a similar observation in respect of landreform in Zimbabwe.29 Further, the national political shenanigansbetween the political parties also resulted in less and less ‘offers’ from theAchikumbe in the receiving districts under the project; the receiving districtsbeing – at all material times – an opposition political power base.30

2 The state and the land deprived

As noted above, the interface between the state and the land deprived ismost pronounced through the Community Based Rural LandDevelopment Project; the ‘Kudzigulira Malo’ project. The project was oneof the implementation strategies of the National Land Policy. From 2004,the state, with support from the World Bank, piloted this project in fourdistricts of southern Malawi.31 At the start of the project, the estimatedtotal budget was USD28 958 940; with the state contributing USD1 958940 and the Bank USD27 000 000.32 The project, in its pilot phase, was torun for four years. On 19 November 2009, the World Bank’s Boardapproved the extension of the Project to September 2011, together with agrant of USD10 000 000.33 Beyond 2011, the state initially intended toscale up the project to rest of the country. The scaling up was subject toavailability of funds from the state’s other development partners besidesthe World Bank. The Bank was reluctant to solely fund a scaled up

27 Key Informant Interview: 23 April 2008.28 Key Informant Interview: 4 June 2008.29 Moyo & P Yeros (n 8 above).30 Key Informant Interview: 23 April 2008.31 The four districts under the pilot phase are Thyolo, Mulanje, Machinga and

Mangochi: See Government of Malawi Community based rural land development project:Project implementation manual (2005). The combined total human population of theproject area as at September 2008 was 2.4 million: National Statistical OfficePopulation and housing census: Preliminary report (2008).

32 As at January 2009, the state had contributed USD875 621(out of a financialcommitment of USD1 958 940) while the Bank had met its full financial commitment:Key Informant Electronic Mail: 20 January 2009. See also Government of Malawi &World Bank The community based rural land development project (Kudzigulira Malo): Mid-term review report (2007) 1 (on file with the author).

33 See World Bank: Malawi http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEXT/MALAWIEXTN/0,,contentMDK:22395961~menuPK:50003484~pagePK:2865066~piPK:2865079~theSitePK:355870,00.html (accessed25 January 2010).

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implementation of the Project.34 A key informant working under Projectstates:

The Project is a pilot which will be scaled up nationwide. The design willinvolve a lot more donors than just the World Bank. Donor interest is crucial;but the World Bank does not want to fund a scaled up project on its own.35

The project has since not been scaled up to the rest of the country. In fact,the project has been abandoned. This brings to the fore the issue ofprogramme financing that I discuss in Chapter 1. I have argued in thatChapter that since the implementation of market-based land reformmodels requires heavy capitalisation, it poses enormous challenges forweak economies such as Malawi.

Poverty reduction was the purported central driver under the projectthrough ‘directly facilitat[ing] access to land by the land deprivedbeneficiary groups’.36 In this respect, it was projected that at the end of thepilot phase, some 15 000 ‘rural poor households’ in the four districts willhave been resettled on new tracts of land whose title shall be in the nameof the households respectively.37 As it happens, this objective has not beenachieved.

The project provided for an elaborate eligibility criteria which the landdeprived needed to meet. The land deprived were required to formbeneficiary groups which become the minimum level of consideration foran application for land redistribution under the project. The eligibilitycriteria38 stated that each applicant under a beneficiary group needed to be:

(1) a citizen of the Republic of Malawi; (2) land deprived and food insecure and a member of a rural household from

one of the pilot districts;(3) in possession of the least amount of land but has the ability to work on

more land than presently accessed, that is, they must have excess labour;(4) with lowest income and least wealth;(5) with inadequate means to secure their annual food requirements and are

chronically dependant on food handouts or other forms of externalassistance for survival;

(6) an ‘eligible vulnerable individual’; that is, for example, an orphan or aperson with disability; and

(7) a person who is not presently be encroaching on land being applied for,nor involved in a labour disputes with owner of the being applied for.

34 Key Informant Interview: 23 April 2008.35 As above.36 Government of Malawi (n 31 above) 3.37 Government of Malawi (n 31 above).38 Government of Malawi (n 31 above) 6-7.

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There were specific requirements relating to the eligibility of abeneficiary group under the Project.39 A beneficiary group needed to:

(1) consist of members that have not benefited from previous landredistribution programmes;

(2) have a minimum of twenty and a maximum of thirty five members;(3) have a constitution and demonstrate sound organisational capacity;(4) have strong and identifiable leadership with capabilities to mobilise

groups;(5) be willing to be relocated and engage in farming; and(6) develop a proposal.

The proposal had to show that it:

(1) reflected a need for land as a priority for the land deprived;(2) directly benefitted the land deprived;(3) included a capacity building element for the beneficiaries to develop and

manage the asset;(4) demonstrated that transparency and accountability processes were

adhered to in the process of negotiating for land;(5) demonstrated that there was and will be active participation by the entire

group; (6) was consistent with sectoral norms and recommended practices; and(7) ensured that identified land had the potential for improvement by the

purchasing community.

The project implementation guidelines stated that the land deprived undera constituted beneficiary group were responsible for identifying land foracquisition and had to directly negotiate with the landowner for the price.If a price was agreed upon, the land deprived were required to submit aprovisional sale agreement to the local government who would thenapprove or reject the proposed sale. If a sale was approved, the price waspaid to the landowner under the project.40

If a sale had been concluded, the following events ensued:41

(1) each emigrating household was allocated a minimum of two hectares ofland;

(2) each emigrating household was provided with transportation if theacquired was more than fifty kilometres from their erstwhile home;

(3) each emigrating household was provided with a one-off payment ofUSD1050 for resettlement and farm development; 30 per cent of theamount for land acquisition, 10 per cent for settlement, and 60 per cent

39 Government of Malawi (n 31 above) 7. The beneficiary groups are ‘trusts’ registeredunder the Trustees Incorporation Act. Staff from the Project Management Unit underthe Project assists the beneficiary groups with the process of developing a constitutionfor the trust and its registration as required by law.

40 Government of Malawi (n 31 above).41 Government of Malawi (n 31 above) 8-14; and Chinsinga (n 11 above) 12.

A multiverse of interests and the land question 133

for farm development. The resettlement package included: six bags offertiliser, two hoes, a panga, a pick, and maise and tobacco seeds;

(4) the newly acquired land could not be transferred or leased during the firstfive years from the date of purchase; and

(5) the emigrating beneficiary group was responsible for ground rent, in thecase of leasehold land, or land tax, in the case of freehold land.

A civic campaign through the electronic and print media complementedthe implementation strategy of the project. The designation of the projectas ‘Kudzigulira Malo’ – which literally means ‘buying land for oneself’ – waspart of this civic campaign. Such designation of the project served threepurposes: First, it portrayed the land deprived as equal partners with thestate under the land reform in the country. It presented the land deprivedas having financial capacity to ‘buy’ available arable land for theirlivelihood. Finally, the designation legitimised the project which in realterms is rooted in a land redistribution model based on the willing seller/willing buyer approach. As pointed out earlier, far from the land deprived‘buying’ land for themselves, the state, with support from the World Bank,provided grants to the land deprived for the land transactions under theproject. Hence, the responsibilisation here lay in the ‘ideology’ ofownership underpinned by the grants.

Further, the scope of the beneficiaries amongst the land deprivedunder the project was delineated by the requirement that those who had‘encroached’ on private land did not qualify to benefit from landredistributed for resettlement under the Project. The view of the state wasthat dealing with ‘land invaders’ amounted to ‘rewarding encroachers’ andwould exacerbate ‘encroachment’ on private land.42 In this respect, thestate took a laissez faire approach and desisted from using its statutorypowers under the Lands Acquisition Act.43 According to the state, thisapproach ensured that the project was ‘assimilative’ and less‘confrontational’.44 A key informant states:

The State adopts a laissez faire approach because historically the State has beenweak in enforcing lease covenants. Therefore, under the Project, theMinister’s power of compulsory acquisition under the Lands Acquisition Actis not used. The application of the Land Acquisition Act is not an optionunder the Project because management [of the Project] feels that using theLands Acquisition Act will aggravate ‘problems’ that are already there in theapplication of the Act; especially the enforcement of the lease covenants.

42 Government of Malawi (n 31 above) 7; Key Informant Interview: 23 April 2008; andKey Informant Interview: 24 April 2008. The description here is also crucial. Thejuridical term ‘encroachment’ is preferred by the state and the Bretton WoodsInstitutions to the more ‘emancipatory’ reference as ‘land occupation’. CfGA Meszaros ‘Researching the Landless Movement in Brazil’ in M McConville &WH Chui (eds) Research methods for law (2007).

43 Malawi Law Commission Report of the Law Commission on the review of land-related laws,Malawi Government Gazette Extraordinary, 9 April 2010.

44 Key Informant Interview: 23 April 2008.

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Secondly, the Act is not used because the management of the Project does notwant to appear ‘confrontational’ to the estate owners.45

In the final analysis, some commentators have stated that it is less clear asto whether the project was piloting the implementation of the NationalLand Policy or a land redistribution model based on the willing seller/willing buyer approach.46 In my view, the Project constituted animplementation of the Land Policy since both frameworks had the sameprinciples; particularly, the land redistribution model based on the willingseller/willing buyer approach. Further, the project represented a subtleshift in the manner of hegemonic responsibilisation. The processes underthe colonial state and the Kamuzu Banda Administration fostered theresponsibilisation of a labourer. Under the project, the responsibilisationwas that of an inchoate producer who, given the concerns of sustainabilityI raise in Chapter 1, is vulnerable to the vicissitudes of the land market inhis or her new capacity as a post-distribution land owner. In this sense, theresponsibilisation under the project was based on the device of a contract.Third, the intervention of the Malawi Law Commission and itsrecommendations as discussed in Chapter 4 were incipiently beingovertaken by the state’s initiative under the project. While the LawCommission’s intervention is meant to translate the Land Policy into law,as a scheme under a range of multiform tactics, the project receivedsupport from the ‘North’ most notably, through the World Bank, in turnre-aligned the purported resolution of the land question under the guise ofkudzigulira malo.47

Further, there is also evidence of counter-conduct by the land deprivedboth from the sending districts and receiving districts under the project.48

In the case of the land deprived from the sending districts, the counter-conduct included not participating in the project; registering as prospectivebeneficiaries in different names to maximise their benefit through thereceipt of multiple resettlement grants; receiving resettlement grants andnot relocating to the sending districts under the project; and returning tothe place of origin in the sending district after a brief period of relocationto the receiving districts.

The counter-conduct by the land deprived raises the issue oflegitimacy. The land deprived considered that the state is ‘forcing’ them tore-locate away from their ‘ancestral homes’. The state (together with theAchikumbe in the sending districts) did not provide arable land to the landdeprived. The state’s position was that the lack of offers from theAchikumbe in the sending districts amounts to a fait accompli and left it withno alternative but to re-locate the land deprived to the receiving districts.

45 Key Informant Interview: 23 April 2008.46 See particularly the critique by Chinsinga (n 11 above).47 Government of Malawi (n 31 above); and Government of Malawi & World Bank (n 32

above).48 Key Informant Interviews: 24 & 30 April 2008.

A multiverse of interests and the land question 135

Hence, while the state adjudged these acts ‘fraudulent’; the land deprivedtook their actions as justified, and depending on ‘whom one asks’, theiracts were legal and legitimate.49

Amongst the land deprived, there has been a nuanced relationship ofeni malo and obwera.50 The eni malo in the receiving districts occupied theland given to the obwera from the sending districts on the basis that thelatter had acquired ‘good land’. Even though the eni malo in the receivingdistricts under the project were technically ‘encroachers’ under the project,they had to be assimilated into the project. Often this assimilation led totheir inclusion in the beneficiary groups comprising the obwera.51 Thenature of the harmony between the two groups has been unclear.52 A keyinformant from the project management team states:

In Machinga [a receiving district under the Project] eni malo were very hostileand violent towards obwera. They invaded the plots of the obwera. Eventhough we did not normally incorporate ‘encroachers’ under the Project, wehad to include the eni malo in Machinga because the violence would havejeopardised the Project.53

Notably, the approach taken under the project to deal with land‘occupation’ was markedly more reconciliation as opposed to the bullishuse of prosecution against the land deprived.

3 The Achikumbe and the land deprived

The relationship between the Achikumbe and the land deprived reveals thetensions in land reform discourse relating to the appropriate model andapproach for a reform in a particular country. In the context of Malawi, Iexamine the relationship of the Achikumbe in the tea estate sector insouthern Malawi with the land deprived in the periphery of the estates. Therelationship demonstrates that there is tension between the Achikumbe andthe land deprived which has revolved around calls from the Achikumbe forland reform that does not supposedly jeopardise the state’s agriculturalproductivity based on large estates, on the one hand, and, on the otherhand, the agitation from the land deprived for land reform that addressesland deprivation as a historically constructed ‘wrong’. In the constant

49 Cf for example G Meszaros ‘Taking the lands into their hands: The Landless Workers’Movement and the Brazilian state’ (2000) 27 Journal of Law & Society 517; KeyInformant Interviews: 24 & 30 April 2008; and Focus Group Discussion: 30 April2008.

50 ‘Eni malo’ is a ChiNyanja descriptor which loosely translated means ‘owners of theland’; and ‘obwera’ is also a ChiNyanja descriptor which loosely translated means‘strangers to the land’.

51 Key Informant Interviews: 24 & 30 April 2008.52 Cf Chinsinga (n 11 above).53 Key Informant Interview: 24 April 2008.

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posturing that emerges, the Achikumbe rely on the efficiency argument andthe land deprived base their position on history, context and culture.

The Achikumbe in the tea estate sector in southern Malawi introduceda number of community-targeted initiatives aimed at dissuading thegrowing ‘dissent’ that simmer beneath their relationship with the landdeprived living in the periphery of the estates. The dissent arises out of lackof access to available arable land for their dignified livelihood. TheAchikumbe’s community-targeted initiatives have included the promotionof smallholder tea growers’ cooperatives, provision of technical assistancein crop husbandry, and the provision of social infrastructure and relatedprogrammes.

The Achikumbe have promoted the formation of cooperatives as a wayof ‘formalising’ their relationship with the land deprived. It is a symbioticrelationship that serves to guarantee a labour force for the Achikumbe andprovide a livelihood for erstwhile land deprived without necessarilysubverting the status quo of existing land relations. This is the case becausethe cooperatives will receive support from the Achikumbe on the conditionthat the cooperatives grow tea which will be sold to the Achikumbe. The saleof the tea harvest is to occur in a ‘participatory’ setting where the price isreached by the ‘consensus’ of the Achikumbe and land deprived under aparticular cooperative.

The Achikumbe’s core agenda in the formation of cooperatives is tocurb the high labour turnover in their sector.54 This transforms the landdeprived from mere labourers into inchoate producers under a nascentsharecropping scheme. A key informant, a manager at a commercial teaestate, states:

[We] have encouraged [villagers] to form an association. The association shalloperate as a farmers’ cooperative. The long-term strategy is that theseassociations must be self-sustaining through, for example, ownership of afactory. The community initiative is industry-wide; all tea estates are involved.The high population density in the area means that it is possible to havelabour from the local community as well as keep the association going. At themoment, there is high labour turnover.55

The rationale here is that under cooperatives, the land deprived will bemore settled and to the extent that they are earning an income under aquasi-oligopostic market arrangement, it diffuses calls for landredistribution.56

The provision of the technical expertise in crop husbandry is atechnique to ensure the longevity of the cooperatives. In this respect, the

54 Key Informant Interview: 19 May 2008.55 As above.56 As above.

A multiverse of interests and the land question 137

initiative by the Achikumbe in the tea estate sector is yet another example ofa process of normation. The Achikumbe provide the green leaf from theirnurseries and other farm inputs to the land deprived under thecooperatives. This gesture is to ensure that the cooperatives produce a leafthat is ‘suitable’ for an international market.57 In sum, the cooperativesscheme entrenches the roles of the Achikumbe as the land owner-producerand the land deprived as the labourer-tenant worker and an inchoateproducer that fit a ‘norm’ of production based on market as value.

Further, the Achikumbe provide social infrastructure to the landdeprived in the form of school blocks, boreholes for clean and safe watersupply, support of HIV and AIDS programmes where the Achikumbe assistwith the public awareness of the pandemic through civic education, andthe provision of anti-retroviral drugs for those who are HIV positive andAIDS sufferers.

Finally, the change towards greater community involvement on thepart of the Achikumbe has been a recent development.58 It is not merecoincidence that the change in approach that has led to the Achikumbeinvesting more in social capital emerges in the context of greater agitationfor access to arable land under the land reform underway in the state. TheAchikumbe’s supposedly contextualised social ‘responsibility’ is amanifestation of responsibilisation.59 The difference here is that thetechnique in place has gone beyond the ‘construction’ of the individual asa cheap, wage labourer. The technique permeates the individual’s verylivelihood; in the Foucauldian sense, the approach is constitutive of‘biopower’ – ‘the power over life’. A key informant from the Achikumbe (amanager-owner at an estate) states:

The market guarantees better social welfare. Better income through provisionof labour means that the communities can afford a dignified livelihood. Weconsider them our partners in progress. The Tea Exporters Association ofMalawi [a grouping of tea estate owners] never integrated communityinitiatives. A change in approach has led to greater community projects’involvement. We now have HIV/AIDS programmes. We are involved in theconstruction of school blocks; provision of boreholes. We think investment inthe communities is a good thing. We have encouraged the communitiesaround our [estate] to form cooperatives. The long term strategy is toempower the cooperatives to have their own factory. We think the future ofthe sector requires greater support of the government in the smallholdersector.60

57 As above.58 As above.59 Under the scheme of responsibilisation under this thesis, this process may be classified

as hegemonic if it were state-based. This is perhaps a manifestation of a ‘neo-hegemonic’ responsibilisation that transcends the state apparatus.

60 Key Informant Interview: 19 May 2008.

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In the process, there is a slight re-focus; from the issue of access toavailable arable land to contentment with a healthy, well-looked afterlabourer. The commonality in the processes governing the relationship ofthe Achikumbe and the land deprived is that they all seek to promote agreater, consensual biopower relationship. A recent statement by a wagelabourer at Chitakale Tea Estate sums up the point:

Since Mulli Brothers Group bought this estate, it is no secret that we are thehighest paid estate workers.61

The labourer goes on to state that he has worked with the estate when itwas both under white and state ownership and he observed that no oneenvisaged that ‘working life’ at the estate would be as ‘sweet’ under the‘new’ terms of conditions of service. The labourer further quipped that heand his family now lived in a ‘company house’.62

Further, I assert that the community-targeted initiatives by theAchikumbe seek to maintain a supply of cheap wage labour and ultimatelysustain the global commodity chain. However, the nature of participationin the initiatives by the land deprived reveals the nature of the counter-conduct on their part. The reception of the community-targeted initiativeshas been at best lukewarm. The land deprived insist on a land reform basedon a land restitution model on the basis of history, context and culturewhich purportedly gives them a superior land claim to the land now in theestate sector.63 A key informant states:

We wanted Government to give us the land from the estates because this landis from our forefathers. We do not want to leave here. This is our home. Allour relations are here.64

And in relation to community-targeted initiatives: ‘We just work aslabourers to earn some money for our livelihood. We do not grow our owntea.’65

The following sums up the attitude of the Achikumbe:

How do we marry economic value and use value? The market guaranteeswelfare. Better income through provision of labour means that thecommunities can afford a dignified livelihood. That way, we will be partnersin progress.66

61 ‘Chitakale estates transform lives’ Nyasa Times available at http://www.nyasatimes.com/national/chitakale-estates-transforms-lives.html (accessed 5 Dec-ember 2009).

62 As above.63 Focus Group Discussions: 30 April 2008 & 2 May 2008 respectively.64 Focus Group Discussion: 30 April 2008.65 Focus Group Discussion: 2 May 2008.66 Key Informant Interview: 19 May 2008.

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4 The intra–‘community’ dynamics

The focus on the intra-‘community’ dynamics seeks to illustrate that it iserroneous to portray the interests of the land deprived and their socialsetting – the ‘community’ – with a high degree of consensus. Thediscussion looks at the role of chiefs, as a key political institution of the‘community’, and its implications for the resolution of the land question inthe country. The complication that emerges amongst the land deprivedthemselves is also considered. This complication relates to the tenseinterface between those amongst the land deprived that have benefitedunder some restorative state programme and those that are yet to benefitunder any programme. The distinction is made between the so-called enimalo – who often are the non-beneficiaries – and the so–called obwera –who often are the beneficiaries under a restorative programme.

4.1 The role of chiefs

The discussion of the role of chiefs in the state is pertinent because the on-going land reform has been encrypted in a variegated ‘customary’ context.In one shade, chiefs in the state have resisted the reform because, as theydeem it, it endeavours to erode their power as custodians of land atcustom.67 At another level, the state advocates the involvement of chiefsin land administration. The chiefs’ position assumes an innatecomprehension of their power relationship in relation to land. The stateassumes an allocative role of the chiefs where the power relationship inrelation to land is a conferment and not a natural entitlement.

The position of chiefs becomes challenging when one seeks to establishthe source of their authority and their legitimacy.68 Under the colonialstate and the postcolonial state administrations respectively, the chief hasbeen the subject of strategic deployment within the state apparatus. Thecolonial state often tolerated subservient incumbents to inculcatedomination. Deviant chiefs could be suspended or outright banished. Thepractice has been perpetuated under the postcolonial state and is often

67 ‘Chiefs reject land bill on land tenure’ The Nation 8 March 2006; ‘Meeting advises onnew Land Bill’ The Daily Times 9 March 2006; and ‘Chiefs gang up against CustomaryLand Bill’ Nyasa Times 26 June 2013, available at http://www.nyasatimes.com/2013/06/26/malawi-chiefs-gang-up-against-customary-land-bill/ (accessed on 18 October2013).

68 M Mamdani Citizen and subject: Contemporary Africa and the legacy of latecolonialism (1996); M Chanock Law, custom and social order (1985); DC Williams‘Reconsidering state and society in Africa: The institutional dimension in land reformpolicies’ (1996) 28 Comparative Politics 207; and B Chinsinga ‘The interface betweentradition and modernity: The struggle for political space at the local level in Malawi’(2006) 54 Civilisations 255.

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buttressed by law.69 While it is acknowledged that a majority of chiefsassumed their incumbency through lineage,70 it remains to be resolved theextent to which the status of chiefs that is derived from colonial or stateconstruction can claim custody over land on the basis of ‘custom’.71

The call by the chiefs in Malawi that they are the custodians of land at‘custom’ and that land reform must not erode their custodianship onlyseeks to reinforce the relevance of their institution as a unit of patronage.72

This is the case for two reasons. Firstly, chiefs fulfilled a strategic roleunder colonialism which was precisely to guarantee colonial domination.The institution was a social construction that sustained a particular powerrelationship.73 The nature of the social construction and its role has beenperpetuated under the postcolonial State.74 The social construction isconcretised by the fact that the resource base of chiefs is ill-provided for ornon-existent.75 In this respect, chiefs rely heavily on state machinery fortheir survival and in the process render themselves pliable to the whims ofstate’s patronage.

The second reason why chiefs are a unit of patronage directly relatesto the land question in the country. Peters and Kambewa have observedthat while the National Land Policy has reposed considerable trust inchiefs, their legitimacy is suspect since chiefs have been at the centre ofland alienation through sales to the Achikumbe. In this respect, thesuggestion that chiefs advance the interests of their ‘subjects’ – who partlyinclude the land deprived in the ‘community’ – is tenuous.76

69 Mamdani (n 68 above); Chanock (n 68 above); Williams (n 68 above); and Chinsinga(n 68 above). In the case of Malawi, the President has statutory powers to appoint,promote, suspend or dissolve a traditional authority: section 89(1)(d) of theConstitution and sections 4, 11 and 12 of the Chiefs Act (Cap. 22: 03), Laws ofMalawi. The state has entrenched the position of chiefs in the formal state apparatusthrough the provision of salaries to them from the National Budget: See for examplethe 2008/2009 Budget Statement delivered by the Minister of Finance to the NationalAssembly available at http://www.sdnp.org.mw/~stewart/Budget_Speech_2008_09.pdf (accessed 12 January 2009). The Malawi Supreme Court of Appeal hasconfirmed the President’s powers at law in Group Village Headman Kakopa,Tsakulani Jonisi Kasambwe v Lotani Njeresa Chilozi and the Attorney General CivilCause Number 40 of 2000 (Unreported).

70 F Moto ‘Domesticating the definition of democracy’ (1998) 2 Bwalo: A Forum for SocialDevelopment 24, cited in Chinsinga (n 68 above).

71 Mamdani (n 68 above).72 PE Peters & D Kambewa ‘Whose security? Deepening social conflict over

“customary” land in the shadow of land tenure reform in Malawi’ (2007) 45 Journal ofModern African Studies 447.

73 Mamdani; Chanock; Williams; and Chinsinga (all in n 68 above).74 Chinsinga (n 68 above).75 As above.76 Peters & Kambewa (n 72 above). Cf the position in Tanzania where villagers

demanded, and the Land Commission recommended, their greater participation inland administration matters such as land allocation, determination of boundaries andsales: Government of Tanzania Report of the Commission of Inquiry into land matters,Volume I (1994), 94; and I Shivji Not yet democracy: reforming land tenure in Tanzania(1998).

A multiverse of interests and the land question 141

In light of the foregoing, the call of chiefs as custodians of land at‘custom’ merely serves to perpetuate their relevance as a unit of patronagein their relationship with the state. Further, the call also serves to inculcatethe power relationship between them and the land deprived; a relationshipthat is invariably in favour of the chiefs.

4.2 Eni Malo and Obwera: The ‘internecine’ conflict of the land deprived

The discussion here primarily stems from the events in the wake of theredistribution of Makandi Estate in Thyolo, southern Malawi, and thepreliminary findings from the resettled communities under theCommunity Based Rural Land Development Project.77 The MakandiEstate was established in the 1920s and was owned by LonrhoAgribusiness Limited. The area of the Estate is part of the land that waspart of the land expropriation by white missionaries and entrepreneurs insouthern Malawi just prior to the declaration of British colonialism.78 Theblack population that worked on the Estate comprised Anguru migrantsfrom Mozambique. A key informant confirmed the point:

The chieftaincy ... was established in 1930 when our forefathers migrated tothe area from Mozambique. The Estate found us. Previously, the Estate usedto cultivate cotton, tea, coffee and beans. Things changed. Recently they werejust growing tea and coffee. Villagers used to work on the Estate until theGovernment bought the Estate and redistributed the land to obwera.79

In 2002, the state purchased the estate from Lonrho Agribusiness Limitedfor redistribution to the land deprived living in its periphery. In total, 1 400hectares were to be distributed to 498 beneficiaries; an average of 2.8hectares per beneficiary.

In the run up to the redistribution of the land under the MakandiEstate, the state urged the land deprived in the periphery of the estate toidentify those households that were in dire need of land for their dignified

77 On the findings: Chinsinga (n 11 above).78 MRE Machika Law and economic development: A study of land law and agriculture in

Malawi, Kenya and Zambia unpublished PhD thesis, University of Birmingham, 1983;C Ng’ong’ola ‘Design and implementation of customary land reforms in centralMalawi’ (1982) 26 Journal of African Law 115; C Ng’ong’ola Statutory control of land andthe administration of agrarian policies in Malawi unpublished PhD thesis, University ofLondon, 1983; C Ng’ong’ola ‘The state, settlers, and indigenes in the evolution of landlaw and policy in colonial Malawi’ (1990) 23 The International Journal of AfricanHistorical Studies 27; and FE Kanyongolo ‘Land occupations in Malawi: Challengingthe neoliberal legal order’ in Moyo & Yeros (n 8 above) 118.

79 Key Informant Interview: 24 April 2008. The establishment of the Estate actuallypredates the arrival of the community in the periphery of the Estate. The communitytraces its settlement in the area only as far back as the 1930s. The Estate had beenestablished by then: S Holden et al ‘Land policy reform: The role of markets andwomen’s land rights in Malawi’ (2006) 13.

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livelihood.80 The redistribution exercise immediately degenerated intoconflict between the land deprived in the periphery of the estate – the so-called eni malo81 – and the land deprived from elsewhere that benefitedunder the exercise – the so-called obwera. The conflict arose because out ofa population of approximately 2 000 of the community in the periphery ofthe estate only twenty people benefited from the redistribution,representing a paltry 1 per cent of the ‘targeted’ community of the landdeprived in the periphery of the Estate.82

In the wake of the redistribution, violence and general acrimonyensued where eni malo invaded the redistributed pieces of land andvandalised property belonging to obwera. Eni malo felt cheated under theland redistribution exercise as they could not conceive any discernibledifference between their statuses as a land deprived constituency from thatof obwera. The ‘ring leaders’ of the land occupation were arrested, chargedwith encroachment contrary to section 36 of the Land Act, prosecuted andconvicted. They were sentenced to pay a fine of 5 000 Malawi Kwacha or,in default, nine months imprisonment. One of the defendants served theterm of imprisonment; the rest paid the fine.83 One of the defendantsstates:

We did not elect leaders. There was fluid ‘leadership’ based on one’s ‘bravery’and the willingness to ‘occupy’ Makandi. A formal committee would havebeen counter-productive as the police would have just targeted the leaders. Weoccupied the Estate for a week. The police came to forcibly remove us; thoseof us who resisted were arrested. We were initially held at Luchenza PoliceStation. Our fellow villagers threatened violence to ‘rescue’ those of us whohad been arrested. We were then moved to Thyolo Police Station; then toThyolo Prison. The villagers petitioned our Member of Parliament, theMinister of Lands and the Ombudsman to secure our release. Delegationsfrom the village were sponsored by donations from within the village. Five ofus were tried at the magistrate’s court in Limbe. The arrests were meant to‘intimidate’ us. The rest of the villagers were afraid to ‘occupy’ Makandi afterour arrest.84

The relationship between eni malo and obwera is less than cordial for twoprimary reasons: The existing power structure amongst eni malo feelsundermined as obwera created their own power structure and do not

80 The then incumbent State President, Bakili Muluzi, held a political rally in the areawhere he made this assurance: Focus Group Discussions: 30 April 2008 & 2 May2008.

81 The village headperson of the community in the periphery of the estate makes theclaim to ownership based on direct ancestral lineage to the ‘ancient’ ownership of theland in question: Key Informant Interview: 24 April 2008.

82 As above.83 Republic v Flyton Jumbe, Simon Andaki Likoswe, Wyson Muhiye, Alfred Mpwitikizi and

Rosario Henderesoni In the Senior Resident Magistrate’s Court at Dalton Road, Limbe,Criminal Case Number 331 of 2003 (Unreported). The fine is equivalent to GBP7(1GBP = 713MWK at December 2013 exchange rate).

84 Focus Group Discussion: 2 May 2008.

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recognise the authority and legitimacy of the structure of eni malo. Second,and perhaps more tellingly, the Estate provided a source of livelihood toeni malo in the form of wage labour. The sale and subsequent redistributionof the land comprising the Estate has meant a loss of livelihood on the partof eni malo.85

Further, the conflicts between eni malo and obwera under the Makandiscenario were replicated in the receiving districts under the CommunityBased Rural Land Development Project.86 First, the ‘socio-culturalintegration’ of obwera – from a predominantly Christian background – intothe community in the receiving districts – which is predominantly Moslem– had its problems.87 The problems had their toll on the lifestyle ofobwera.88 A key informant states:

There is less cooperation in Mangochi [a receiving district under the Project]because Muluzi campaigned there saying the obwera from Thyolo [a sendingdistrict under the Project] are bent on destroying UDF [an opposition politicalparty] in favour of Mutharika and DPP [the then ruling political party]. Ourattempts to negotiate with the people of Mangochi have always failed at the‘last minute’ all the time because of the politics.89

There were also ‘myths’ perpetrated by the chiefs in the receiving districtsthat obwera are vampires and satanists.90 The chiefs propagated the ‘myths’as they perceived their authority was under threat since obwera resettled inthe receiving districts under cooperatives or trusts.91 Finally, the frictionbetween obwera and eni malo was aggravated by the dynamics ofneopatrimonial nature of the state. Party politics in the state is ethnic-basedand the receiving districts are considered the stronghold of one politicalparty – the United Democratic Front – while the sending districts areconsidered the stronghold of another political party – the DemocraticProgressive Party.92 Hence, an influx of obwera in the receiving districtswas perceived to undermine the UDF’s political power base.93

85 Holden et al (n 79 above) 26-27. 86 The receiving districts are Machinga and Mangochi while the sending districts are

Mulanje and Thyolo: See Government of Malawi (n 31 above). The land forredistribution is purchased from estates in the receiving districts and is available forresettlement by the land deprived from the sending districts.

87 Chinsinga (n 11 above).88 The obwera cannot rear livestock such as pigs nor take alcoholic drinks which are

considered taboo amongst the Moslems in the receiving districts: Chinsinga (n 11above) 16; and Key Informant Interview: 24 April 2008.

89 Key Informant Interview: 24 April 2008.90 The undertone of the ‘myths’ is that obwera will annihilate eni malo: Chinsinga (n 11

above). This is comparable to James Scott’s ‘hidden transcript’: JC Scott Dominationand the arts of resistance: Hidden transcripts (1990).

91 Chinsinga (n 11 above) 17.92 On the role of ethnicity in party politics in the country: W Chijere Chirwa ‘The politics

of ethnicity and regionalism in contemporary Malawi’ (1994) 1 African Rural and UrbanStudies 93.

93 Former State President, Bakili Muluzi, who hails from one of the receiving districtsheld a political rally in one of the receiving districts where he called on the communityto be uncooperative to the land reform under the Project: Key Informant Interview:

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The interests amongst the constituency of the land deprived arenuanced and marked by dissensus. Eni malo agitate for a superior claim toland under the state’s land redistribution programme on the basis ofhistory, context and culture. To the extent that the alleged basis is tenuous,it amounts to a strategic manoeuvre on the part of eni malo to access ascarce resource; namely, land.

The relationship between the chiefs and the land deprived is also anuanced one. It has been argued that chiefs are a self-interested institutionwho appropriate ‘culture’, ‘custom’ or ‘tradition’ to sustain their relevanceas a unit of patronage. Indeed, there were allegations against chiefs fromthe sending districts under the Community Based Rural LandDevelopment Project who demanded cash kickbacks for ‘facilitating’ therelocation of beneficiary groups to the receiving districts.94 A keyinformant from the project states:

There is one case of corruption involving a beneficiary group that relocated toMachinga [a receiving district under the Project]. A chief demanded paymentfrom the members of the group for ‘facilitating’ the land resettlement. TheProject received a letter dated 7 December 2007 from [the] Anti-CorruptionBureau on the alleged corruption. We forwarded the letter to the Ministry ofLands.95

In the case of the land deprived as a constituency, there are diametricallyopposed interests of eni malo and obwera that centre on the notion of‘culture’, ‘custom’ or ‘tradition’. In the case of the eni malo and obwera, thesuggestion of a superior claim by eni malo over obwera not only manipulates‘culture’ but also denies the validity of freedom of movement and residenceenshrined under the Constitution.96 The attitude of eni malo has been thus:

We resisted going to Mangochi or Machinga [the receiving districts under theProject] because our home is here [meaning Thyolo; a sending district underthe Project]. Maybe those people from elsewhere should have been moved toMachinga not us because we were born here.97

The eni malo remain adamant even though the picture of land availabilityis very grim: ‘[The] village has got many people and land pressure is acute.There is no land even for a toilet.’98

In the end, these positions based on history, context and culture arecounter-conduct.

93 24 April 2008; and Chinsinga (n 11 above) 17. The late President, Bingu waMutharika, hailed from Thyolo district; which was one of the sending districts underthe project.

94 Key Informant Interviews: 24 & 30 April 2008.95 Key Informant Interview: 24 April 2008.96 Section 39(1) of the Constitution provides that ‘[e]very person shall have the right of

freedom of movement and residence within the borders of Malawi’.97 Focus Group Discussion: 2 May 2008.98 As above.

A multiverse of interests and the land question 145

5 The nature of the multiverse

The relationship amongst the key constituencies belies a perfectdelineation of the ‘dominant’ and the ‘dominated’. There is conduct andcounter-conduct. Indeed, the relationship reveals a multiverse of parochialinterests and a multiplicity of conformities.

I discuss the relationship of the state and Bretton Woods Institutionsin Chapter 4. I endeavoured to show that relationship in this way: Thevarious frameworks in the state’s macro economy confirm Kelmaniancompliance.99 The four major macroeconomic frameworks that have beendeveloped in the country post-1994 and the National Land Policy showcompliance with the frameworks that have emerged from the BrettonWoods Institutions.100 The touted country ‘participation’ that envelopedthe development of the frameworks at the local, Malawian space amountsto legitimation. The processes were heavily ‘agency-sponsored’ and onlyreinforced the power of the Bretton Woods Institutions and by extensionthe country’s development partners.101 The Kelmanian complianceunderlines the process of normation.

Second, the dual identity of the key players in the political hierarchy ofthe state and the Achikumbe results in a somewhat ambivalent nature of therelationship of the state and the Achikumbe. The key players that occupycritical roles in the formal state apparatus are from the constituency of theAchikumbe. Hence, while the pre-1994 rhetoric on land reform by theadvocates of multipartyism in Malawi seemingly favoured land reformbased on a land restitution model, once they assumed sovereign power,there has been a gradualist approach towards the land restitution model. Infact, the rhetoric has since changed in favour of a land redistribution modelbased on willing seller/willing buyer approach. In instances where landhad been purchased under the Community Based Rural Land

99 In the context of social psychology, Herbert Kelman has proposed three types of socialattitudes; compliance, identification and internalisation. Kelmanian compliance refersto a public conformity while retaining one’s personal beliefs [regarding phenomena]:HC Kelman ‘Compliance, identification and internalisation: Three processes ofattitude change’ (1958) 2 Conflict Resolution 51.

100 These frameworks are the CDF, the PRGF, the HIPC Initiative, and the World Bank’sland policy framework of 2003.

101 Participation may be looked at from an instrumental or empowerment approach;where the former is concerned with the ‘improvement of implementation, efficiencyand equity’ and the latter approach ‘values the process of increasing participation as animportant end in itself ’. Participatory processes may be analysed in terms of the‘intensity of participants’ engagement’ and the degree of inclusion (or exclusion) of thevarious constituencies in a country. The participants’ engagement may entailinformation sharing, consultation, joint decision making and initiation and control bythe stakeholders. The role and power of the different actors in the process is critical andhas ‘different implications for who is empowered, as well as for perception ofownership’: F Stewart & M Wang ‘Do PRSPs empower poor countries anddisempower the World Bank, or is it the other way round?’ available from http://www.eurodad.org/uploadstore/cms/docs/WBevalMay03.pdf (accessed 24 January2015) (on file with the author).

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Development Project for redistribution to the land deprived, there werecases where the post-land redistribution process fell prey to cronyism. Theduality of the identity of the key political players in the state’s apparatusand the Achikumbe has resulted in an ‘impasse’ that inculcates lop-sidedland relations in disfavour of the land deprived. However, a rider ispertinent here: The relationship of the state and the Achikumbedemonstrates two things. At one level, it shows the limitations of the stateto digress from market-based land reform models. Second, it also showsthe precarious, albeit self-serving, nature of the relationship of the state andthe Achikumbe in the context of the macro economy of the country.

Third, the nature of the relationship between the state and the landdeprived has been marked by legitimation, meaning-making, andelaborate and nuanced forms of false compliance. The state legitimised theCommunity Based Rural Land Development Project under its ChiNyanjadescription as ‘kudzigulira malo’. This amounted to a disingenuous way ofimplementing land reform under the land redistribution model based on awilling seller/willing buyer approach. The juridicalisation of ‘landoccupation’ as the crime of ‘encroachment’ delineated the scope ofbeneficiaries under the project amongst the land deprived. Those who‘occupy’ land would not benefit under the project; they were classified asencroachers and criminal in their behaviour.

On their part, the land deprived resorted to elaborate processes of falsecompliance; a way of counter-conduct. These instances of counter-conductincluded households collecting the resettlement grants under theCommunity Based Rural Land Development Project for a new life in thereceiving districts when in truth they remained rooted in their villages inthe sending districts; the ‘culture’ argument – where ancestry roots wastouted as a factor in seeking resettlement within the district of ‘origin’; andpatronage – where the chiefs actually selected cronies and not those trulyland deprived to benefit under the project.102

The relationship of the Achikumbe and the land deprived pits theefficiency argument (for instance) against the ‘egalitarian’ argument inland reform discourse. In this respect, the Achikumbe have engaged insocial capital initiatives that entrench skewed land relations and sustain theglobal commodity chain. Again, the land deprived engage in Kelmaniancompliance while simultaneously agitating for land reform based on a landrestitution model. This is evident from the insistence on a superior claimto land based on ancestry.

The relationship of the state and the land deprived, and the Achikumbeand the land deprived reveal the hegemonic responsibilisation that isunderway in land reform in the country. The land distribution model based

102 Key Informant Interviews: 23 April 2008; and Chinsinga (n 11 above).

A multiverse of interests and the land question 147

on a willing seller/willing buyer approach, in my view, entrenches the landquestion in the country. Under the model, the focus is on production. Theefficiency argument prevails. In this way, historical land owners aremaintained as producers while the land deprived are responsibilised aslabourers and inchoate producers under contractual devices such as theCommunity Based Rural Land Development Project.

Finally, the intra-‘community’ dynamics amongst the land deprivedleading to the ‘eni malo-and-obwera’ divide shows that history, context and‘culture’ have become the vessel of patronage. Chiefs are not neutral anddevoid of self interest. The insistence on history, context and ‘culture’reinforces the requirement for a new comprehension of the ‘customary’space in land reform.

In general terms, the nature of the multiverse is such that at the macrolevel, the market has become the ‘totem’. In any event, market as valueunderpins development discourse. At the micro level, history, context and‘culture’ have an instrumental dimension that serves two purposes: Theyinculcate the relevance of chiefs in agrarian politics. Second, they buttressthe argument of the land deprived in their preference for a land restitutionmodel.

6 Final word

The picture that emerges at this point is as follows: The multiverse of theparochial interests of the key constituencies is difficult to reconcile andtriangulate. This difficulty poses enormous challenges for the resolution ofthe land question in Malawi. The land question at this juncture is such thatalmost 80 per cent of the human population of Malawi eke a living fromless than 0.5 hectares per household out of the estimated 5.3 millionhectares of available arable land. This represents around 10.48 millionpeople living off less than 0.5 hectares.

At the heart of the multiverse, at the macro level, are the competinginterests of the efficiency versus the ‘egalitarian’ argument in land reformdiscourse. On the other hand, at the micro level, the nuances revolvearound de-abstraction – in the case of the state and the Achikumbe, and theAchikumbe and the land deprived. Further, at this level there is also the‘capture’ of ‘culture’ where history and context are manipulated by chiefsagainst their ‘subjects’, and in the relationship between eni malo and obwera– where eni malo claim superior legitimacy over the obwera in their claimsto land entitlement and ownership.

The responses to the land question have merely served as thetechnologies of normalisation. The land question in Malawi remainsintact. In Chapter 6, the focus will be on proposals for the resolution of theland question. It is suggested that the resolution of the land question

148 Chapter 5

requires a more holistic approach in ways that advocate a more egalitarianland distribution in recognition of land as a means of production; and theintegration of other non-agricultural economic bases for sources ofdignified living of the land deprived. In Chapter 6, the discussion focuseson the pillars of people-generated responsibilisation. The pillars set theparameters of a responsibilised state in the quest to resolve the landquestion in Malawi.

149

[The] village has got many people and land pressure is acute. There is no landeven for a toilet.1

1 Reiterations

I reproduce the despair of a participant of a focus group discussion above.The participant’s lamentation shows that the land question is not merelyabout pieces of arable land as factors of production. It is about the dignityinherent in a human being and the attendant aspiration for dignified living.The state recognises this fundamental condition of livelihood. Indeed, theMalawi Law Commission in making recommendations for the registrationof ‘customary’ estates notes that 0.5 hectares would be adequate for farmstructures which constitute a dwelling house, animal houses, granaries, alatrine and any other structure that may be required by the household.2

However, Malawi’s socio-economic profile makes the dirge louder:Indeed, in a country of some 13.1 million people, as much as 10.48 millionpeople in Malawi have access to less than 0.5 hectares of arable land; thatthe national average per capita of cultivated land area stands at less than0.22 hectares; that as much as 40 per cent of the human population isimpoverished; that 15 per cent of the population is ‘ultra poor’; and that theagricultural sector accounts for 85 per cent of total employment in thecountry.3 The story of the land question in Malawi is one ofimpoverishment; it is one of exclusion at the expense of inclusion. It is astory about scarcity that leads to less than dignified living.

Amidst this bleak socio-economic reality, a number of law and policyinterventions have been invoked and re-invoked to supposedly foster

1 Participant, Focus Group Discussion: 2 May 2008.2 Malawi Law Commission Report of the Law Commission on the review of land-related laws,

Malawi Government Gazette Extraordinary, 9 April 2010.3 National Statistical Office Population and housing census: Preliminary report (2008).

6CHAPTER LAST WORD: TOWARDS

A RESPONSIBILISED STATE

150 Chapter 6

‘development’ in the country. The interventions towards the resolution ofthe land question have led to the automatic translation of land reform intoland law reform under the so-called ‘new wave of land reform’. In Malawi,the latest ‘policy’ interventions ‘coalesce’ under the National Land Policyadopted in 2002. The Policy is touted as a key component for a vibrantagro-based economy and simultaneously as the blueprint for the resolutionof the land question in the country. Indeed, the formulation and adoptionof the National Land Policy swiftly led to calls for land law reform whichresulted in the intervention of the Malawi Law Commission.

I also note that the nature of the land question at the continent-level inAfrica or at the national space is mired in confusion and dissensus. Foranalytical purposes, the land question in Malawi has four dimensions: thenature of colonial capitalism; the neopatrimonial nature of the state; thenormative issue of the conception of the ‘customary’ space; and finally, theinterests of the key constituencies under land reform in the country;namely, the state, the Bretton Woods Institutions, the Achikumbe, and theland deprived.

Three issues have been the points of focus: Conception of the right toproperty in land and its implication for land reform; the precise nature ofthe land question; and the competing interests of the key constituenciesand their implication for the resolution of the land question. In consideringthese issues, I have relied on the Foucauldian idea of governmentality anda framework for analysis based on the idea of responsibilisation. Thisapproach enables an examination of situations and processes that can orcannot enhance the resolution of the land question.

My goal, in this regard, has been that in examining the land questionin Malawi, the book must go beyond law. Hence, under thegovernmentality-responsibilisation framework, I have sought to highlightthat law is only one of the norms; one in a range of multiform tactics.4

Indeed, responsibilisation then relates to the process where a norm, as atool of governance, becomes practice.5

Under a genealogical account of the land question, a number ofconclusions have been made: First, the confusion and dissensus thattraverses the nature of the African land question has undermined theestablishment of a clearly defined purpose and direction of land reform andis replicated in the context of the nature of national land questions. Second,the complication of the African land question is exacerbated by themultiverse of interests of various constituencies competing for the control

4 M Foucault ‘Governmentality’ in G Burchell et al (eds) The Foucault effect: Studies ingovernmentality (1991) 87 95; and P Fitzpatrick The mythology of modern law (1992) 147-163.

5 R Shamir ‘The age of responsibilisation: On market-embedded morality’ (2008) 37Economy & Society 7.

Last word: Towards a responsibilised state 151

of access to available arable land. Related to this, it has been argued thathistory and context are critical for the examination of the land question inAfrican postcolonial economies such as Malawi.

In Chapter 3, I engaged with the conception of ‘right’, ‘property’ andthe ‘customary’ space. I argue that the liberal tilt of the right to property inland serves a critical function in a political economy tradition that laudsthe efficacy of the market. The market is the value that underlieshegemonic responsibilisation. This tilt is necessary for theresponsibilisation of the individual as homo economicus to sustain aparticular form of land relations. There are land owners and the landdeprived who in the scheme of things under the Foucauldian phenomenonof scarcity serve a particular ‘convenient end’ in the political economy.Further, the framework of a right to property as a social relation is usefulin understanding the subjective historical and contextual specificities thatdefine the conception of property, let alone the right to land, in a country.The emphasis here is on the awareness of the social processes that produce(social) reality. This social constructionist approach is pertinent in theunderstanding of the ‘customary’ space and ‘customary’ tenure. It isimportant that the ‘customary’ space must be problematised under the landreform in Malawi. Following from the Mabo discourse and the Malawicourts’ decision in Press Trust (Supreme Court) Case, government action canlegitimise the counter-conduct of the land deprived.

The CDF, MTEF, PRGF and the World Bank’s land policyframework of 2003 have influenced local land reform interventions.Hence, in Chapter 4, I conclude that the global-local macroeconomiclinkage undermines the resolution of the land question in the country. Theresponses to the land question so far overlook the nation’s history andcontext, and exaggerate the importance of the centrality of market as valuein land reform. The dominance arises in the context of the centrality ofmarket as value in development discourse. The promise of the rhetoric ofa fair redistribution of land to the land deprived has been undermined bythe lack of concrete proposals to address the needs of the land deprived.Second, there is no policy synergy amongst the various policies meant tofoster land reform in the country. Put another way, there is nocomplementarity amongst the Report of the Presidential Commission onLand Policy Reform, the land utilisation studies of 1995 to 1998, theNational Land Policy of 2002, the Law Commission intervention of 2003,and the Green Belt Initiative.

In the preceding Chapter, I conclude that the multiverse of the interestsof the state, the Bretton Woods Institutions (particularly the IMF and theWorld Bank), the coterie of commercial farmers – the Achikumbe, and theland deprived is difficult to reconcile and poses significant challenges forthe resolution of the land question. I conceive the multiverse in thismanner: First, the dual identity of the key players in the political hierarchyof the state and the Achikumbe results in a somewhat ambivalent nature of

152 Chapter 6

the relationship of the state and the Achikumbe. The key players that occupycritical roles in the formal state apparatus are from the constituency of theAchikumbe. Hence, while the pre-1994 rhetoric on land reform by theadvocates of multipartyism in Malawi seemingly favoured land reformbased on a land restitution model, once they assumed sovereign power,there has been a gradualist approach towards the land restitution model. Infact, the rhetoric has since changed in favour of a land redistribution modelbased on willing seller/willing buyer approach. Second, the nature of therelationship between the state and the land deprived has been marked bylegitimation, meaning-making, and elaborate and nuanced forms of falsecompliance. There has been state-driven legitimation under theCommunity Based Rural Development Project. On their part, the landdeprived resorted to elaborate processes of false compliance – a way ofcounter-conduct – through fraud, appropriation of the culture argument,and patronage. Third, the relationship of the Achikumbe and the landdeprived pits the efficiency argument against the ‘egalitarian’ argument inland reform discourse. In this respect, the Achikumbe have engaged insocial capital initiatives that entrench skewed land relations and perhapssustain the global commodity chain. The land deprived resort toKelmanian forms of compliance.

Indeed, the conception of hegemonic responsibilisation in this book isthat it is ‘state’-generated; that it is top-down; that it engages in theconstruction and re-construction – the responsibilisation – of theindividual as an ‘entrepreneur’; that the individual must be atomistic; thatthe individual fits into a particular role in the grand scheme of a politicaleconomy. In the context of the land question in Malawi, the discussion hasso far sought to demonstrate that the nature of hegemonicresponsibilisation has not focused on the market for its own sake. It has notmerely focussed on the buying and selling. It has focused on production.In this way, the Foucauldian phenomenon of scarcity underpins economicpolicy on the basis of the abundance of ‘produce’ and cheap labour in orderto maximise dividends from exports. I reach this conclusion because landreform interventions in the country have favoured commercial farming –the Achikumbe constituency – over the land deprived.

I suggest that the nature of conduct and counter-conduct of the keyconstituencies respectively means that it is possible to explore people-generated responsibilisation under the country’s largely liberal democraticconstitutional order. This requires informed intervention and participationby the land deprived in the development of (macroeconomic) policy for thecountry leading to greater policy synergy. So far, narrow, sector-specificpolicy intervention; strict economistic advancement of the efficiencyargument; one-dimensional, legal positivist approaches; and the lack ofmeaningful triangulation of all the critical elements of the politicaleconomy – all these – have undermined the resolution of the land questionin the country.

Last word: Towards a responsibilised state 153

A word on the nature of counter-conduct here: Counter-conduct has abearing on the nature of people-generated responsibilisation. It is admittedthat in Malawi counter-conduct through land occupation in strugglesinvolving the land question has not happened at the same scale as, forexample, in other land struggles in Brazil, Mexico or the Philippines.6

Counter-conduct in Malawi has been largely akin to inchoate ruralmovements. In this Chapter, I make the case for a responsibilised stateunder people-generated responsibilisation as a strategy for the resolution ofthe land question in Malawi.

Again a recapitulation: In Chapters 1 and 2, I contend that people-generated responsibilisation is based on people sovereignty; that to theextent that people-generated responsibilisation may be described in termsof constituent power, it may be located under section 12 of theConstitution; and that the public trust and the social trust under section 12of the Constitution are its embodiment. In this framework, people-generated responsibilisation is complementary to the conception of theright to property as a social relation. Recall that in Chapter 3, theconception of the right to property as a social relation seeks to de-bunk theuniversality of the liberal basis of a ‘right’ let alone a right to property. Theright to property as a social relation brings out the social constructionunderway in a society in the delineation of the relationship of a person toa dephysicalised ‘thing’.

2 The nature of people-generated responsibilisation: The basis of the responsibilised state

People-generated responsibilisation is an intervention based on de-abstraction. The proposal for a responsibilised state seeks to emphasisethat the terms of ‘governing’ that a ‘governor’ may exercise in a polity areset by the people themselves as a sovereign. Indeed, in relation to the landquestion in Malawi, the submission for people-generatedresponsibilisation leading to the emergence of a responsibilised state hasthe following key pillars: The first is the constitutional basis of theresponsibilisation under the public trust and the social trust. The secondrelates to counter-conduct and the beneficial interest in land. Finally, I

6 GA Meszaros ‘The MST and the rule of law in Brazil’ (2007) 1 Law, Social Justice &Global Development Journal available at http://www.go.warwick.ac.uk/elj/lgd/2007_1/meszaros (accessed 14 October 2011); A Bartra & G Ortero ‘Indian peasantmovements in Mexico: The struggle for land, autonomy and democracy’ in S Moyo &P Yeros (eds) Reclaiming the land: The resurgence of rural movements in Africa, Asia andLatin America (2005) 383-410; and S Borras Jr ‘Can redistributive reform be achievedvia market-based voluntary land transfer schemes? Evidence and lessons from thePhilippines’ (2005) 41 Journal of Development Studies 90.

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argue that a land reform that meaningfully confronts the land relations inthe country must locate the land question in the political economy.

2.1 Public trust and social trust: The constitutional basis of people-generated responsibilisation

Malawi’s Constitution of 1994 is largely a liberal democratic constitution.The Constitution provides for, amongst other things, constitutionalsupremacy; an entrenched Bill of Rights; equal and universal suffrage;fundamental principles which state, amongst other things, that all legaland political authority of the state derives from the people of Malawi; andcreates the public trust and the social trust. More precisely, section 12 ofthe Constitution provides for the public trust and the social trust whichform part of the basis for legal and political authority in Malawi. Section12(1) of the Constitution states:

This Constitution is founded upon the following underlying principles –

(a) All legal and political authority of the State derives from the people ofMalawi and shall be exercised in accordance with this Constitution solelyto serve and protect their interests.

(b) All persons responsible for the exercise of powers of State do so on trustand shall only exercise such power to the extent of their lawful authorityand in accordance with their responsibilities to the people of Malawi.

(c) The authority to exercise power of State is conditional upon the sustainedtrust of the people of Malawi and that trust can only be maintainedthrough open, accountable and transparent Government and informeddemocratic choice.

(d) The inherent dignity and worth of each human being requires that theState and all persons shall recognise and protect fundamental humanrights and afford the fullest protection to the rights and views of allindividuals, groups and minorities whether or not they are entitled tovote.

(e) As all persons have equal status before the law, the only justifiablelimitations to lawful rights are those necessary to ensure peaceful humaninteraction in an open and democratic society.

(f) All institutions and persons shall observe and uphold the Constitutionand the rule of law and no institution or person shall stand above the law.

Section 12(1) of the Constitution emphasises some nine principles onexercise of state authority. These principles are: The people are the root oflegal and political authority of the state; second, the exercise of the legaland political authority of the state is delineated by the Constitution itself;third, the exercise of the legal and political authority of the state shall befor protection of the interests of the people; fourth, persons exercising thepowers of the state do so on trust; fifth, persons exercising powers of thestate do so as fiduciaries since they are under a duty to do so lawfully andin line with their responsibilities to the people; sixth, the maintenance ofthe trust for the exercise of the powers of the state depends on an open,

Last word: Towards a responsibilised state 155

accountable and transparent Government, and informed democraticchoice; seventh, the recognition and protection of human rights of personsin the country is derived from the inherent dignity and worth of everyperson; eighth, all persons are equal before the law; and finally, theConstitution has universal application to all persons and institutions andevery person and institution shall comply with it.

The public trust and the social trust need elaborating. First, it isnecessary to clarify of ‘trust’ itself: It has been argued that trust, togetherwith reciprocity, solidarity and cooperation are the ‘habits of the heart’ ofsocial behaviour.7 While it has been difficult to underpin the notion of‘trust’ in definitive terms, ‘trust’ has been described as an ‘encapsulatedinterest’. Newton states:

Trust involves risk, it is true ... but it also helps to convert the Hobbesian stateof nature from something that is nasty, brutish, and short, into something thatis more pleasant, more efficient, and altogether more peaceful. Social lifewithout trust would be more intolerable and, most likely, quite impossible.8

Turning to the public trust and the social trust: The public trust in publiclaw has constituted a ‘mixture of ideas’ which have ‘floated freely’ inconstitutional theory. However, central to the public trust is the idea thatthe ‘right to govern’ must be exercised for the benefit of the civic public.9

Hence, as a practical matter, the choices of the ‘governors’ must conformto the wishes of the ‘governed’.10 The social trust, on the other hand, isrooted in social capital theory. It forms the basis of an individual’sparticipation in a social system.11 While scholars such as Newton make adistinction between social trust and political trust on the basis of socialcapital and political capital respectively,12 in the context of constitutionaltheory, I suggest that the distinction is blurred since the exercise of thestate, ‘juridical’ power has, one way or the other, implications for therelations of the civic public in a social system.

Indeed, the nature of the public trust under section 12 of theConstitution lies in at least two attributes: the existence of the trust ispublicly constituted under the Constitution itself; and the sustenance of thetrust is dependent on an open, accountable and transparent Government.The nature of the social trust, on the other hand, lies in the fact that theexercise of the fiduciary duty that the Constitution has reposed in persons

7 K Newton ‘Social trust, social capital, civil society and democracy’ (2001) 22International Political Science Review 201 202 (internal citations omitted).

8 Newton (n 7 above) 202 (internal citations omitted).9 JL Sax ‘The public trust doctrine in natural resources law: Effective judicial

intervention’ (1969–1970) 68 Michigan Law Review 471. For a discussion of theconception of the ‘civic public’: PP Ekeh ‘Colonialism and the two publics in Africa: Atheoretical statement’ (1975) 17 Comparative Studies in Society and History 91.

10 Sax (n 9 above) 483.11 Newton (n 7 above).12 As above.

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exercising the powers of the state shall be in accordance with theresponsibilities of those fiduciaries towards the people as specified by theConstitution itself. Indeed, Kamchedzera and Banda have argued that thenature of the social trust also lies in the use of terms such as ‘trust’, ‘open’,‘accountable’, ‘transparent’; and I would add ‘informed, democraticchoice’. All these descriptors point to the nature of governing in thecountry.13

The public trust and the social trust mark a conceptual shift from socialcontract to a constitution-based fiduciary relationship between the‘governed’ and the ‘governors’. Under social contract, the emphasis is onthe conduct of ‘citizens’ – the ‘governed’ – while under a constitution-based fiduciary relationship, the focus is on the conduct of the ‘rulers’ – the‘governors’. The constitution-based fiduciary relationship is underpinnedby the Lockean ‘right to revolution’ where a ‘sovereign’ that betrays thetrust of ‘men’ must be ‘overthrown’.14 In this respect, under the public trustand the social trust under the Constitution, the consent of the people as the‘governed’ is not deferred. In this way, the exercise of the state authority isalways subject to the terms of governing set by the people.15

To the extent that the people are the root of legal and politicalauthority under section 12 of the Constitution, the public trust and socialtrust can also be considered in terms of constituent power and constitutedpower. In constitutional theory, commentators have argued that politicalauthority derives from the people who are the repository of constituentpower. Negri contends that constituent power is an expression of thepopular will; it is the power of the ‘multitude’. Hence, democracy isappurtenant to the concept and practice of constituent power. He contendsthat constituent power is in constant conflict with constituted power,which is the fixed power of formal constitutions. Constituent power, inNegri’s thesis, would lie neither with the legislature nor the judiciary as,according to him; the propensity ‘to revolt’ lies with the peoplethemselves.16

It has been suggested that those whose authority is necessary forconstitution-making – the ‘governed’ as the repository of constituentpower – cannot do so without surrendering that authority to ‘institutional’sites – the ‘governors’ as the holders of constituted power. This apparently

13 G Kamchedzera & CU Banda ‘The right to development, the quality of rural life, andthe performance of legislative duties during Malawi’s first five years of multipartypolitics’ Research Dissemination Seminar Number Law/2001-2002/001 5, available athttp://www.sarpn.org.sa/documents/d0001966/index.php (accessed 20 July 2011).

14 J Locke Two treatises of government (1988) II Chap 5, paras 25-31, cited in B BixJurisprudence: Theory and context (2006) 249.

15 A Gramsci Selections from prison notebooks of Antonio Gramsci ed and trans Q Hoare &GN Smith (1971) 12, on ‘spontaneous’ consent; and AA Mazrui ‘The tensions ofcrossing the floor in East Africa’ in AA Mazrui (ed) Violence and thought: Essays onsocial tensions in Africa (1969) 122 on ‘composite’ consent.

16 A Negri Insurgencies: Constituent power and the modern state (1999).

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epitomises the paradox of constitutionalism.17 The paradox resonates withthe point Gramsci makes on the deference of the ‘governed’ in the contextof ‘spontaneous’ consent.18 However, it is contended here that in light ofthe nature of the public trust and the social trust under the Constitutionneither the deference nor the paradox has a basis in Malawi’sconstitutional order at least at the normative level. It is clear under theConstitution that the public trust and the social trust maintains aconstitution-based fiduciary relationship between the ‘governed’ and the‘governors’ such that, at the normative level, the terms of governing willhave been set down by the ‘governed’ as the repository of constituentpower.

In practice, the position is more nuanced. In light of theneopatrimonial nature of the state, it is possible to conclude that thedeference or paradox exists at the level of constitutional practice inMalawi. The deference or paradox, in my view, arises out of practice asopposed to norm. Since the deference or paradox arises out of practice, theextent to which the land deprived may express gnosis is crucial in theresolution of the land question in the country. The normative frameworkof the public trust and the social trust under the Constitution forms thebenchmark for the responsibilised state in land reform in Malawi.

2.2 Counter-conduct and the beneficial interest in land

I argue, in Chapter 3, that approaching conception of the ‘customary’space under the right to property as a social relation framework reveals the(social) construction of the space under hegemonic responsibilisation. Theconstruction of the ‘customary’ space, in my view, has resulted in anumber of conceptual problems in resolving the land question in Malawi.These problems include: an ill-conceived conception of a category of landknown as ‘customary land’ under the 1967 reforms; the continued focus onthe efficiency argument in land reform discourse; the ill-conceivedconception of the ‘customary’ estate under the National Land Policy; theproblematic role of chiefs in the ownership of ‘customary’ land in the‘customary’ space; and the lack of distinction of attributes of property interms of nominal title, control, benefit, and management. These fourattributes of property have implications for the conception of landownership and the direction that the land reform may take in the country.

In Chapter 3, I demonstrate that the legal title to ‘customary’ landunder the Land Act vests in the President under what may loosely be calleda ‘political trust’.19 The people of Malawi – as described under the Act –

17 M Loughlin & N Walker (eds) The paradox of constitutionalism: Constituent power andconstitutional form (2007).

18 Gramsci (n 15 above).19 Tito v Waddell (No 2) [1977] Ch 106.

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merely have a right to use or occupancy. They do not have an enforceableright at law. Even though the Land Act states that the President holds the‘customary’ land as a trustee of the people of Malawi, it has beenconcluded that the comprehensive powers that the state has over‘customary’ land obliterates any notion of a fiduciary relationship byoperation of a trust. If anything, the people of Malawi use or occupy the‘customary’ land under an interest similar to a tenancy at will.20 The resultis that the category of land called ‘customary’ land is in fact part of publicland under the Land Act.

On the basis of this ‘special’ tenancy, I argue in Chapter 3 that thisresults in the creation of a beneficial interest in the land in favour of thepeople of Malawi on the basis of their use or occupancy of ‘customary’land. I then conclude, in that context, that it is useful for analysis toconstrue a constitution-based fiduciary relationship under section 12 of theConstitution. Hence, under land reform in the country, the responsibilisedstate must guarantee access to available arable land as the minimum corefor dignified living on the part of the land deprived. This is the context ofthe conception of the beneficial interest in land.

2.2.1 The beneficial interest in land

There is a legal basis of a beneficial interest in land. In light of theconception of the ‘customary’ space, it is pertinent to ‘disentangle’ the(various) rights, if at all, in this space. In this respect, Colin is a goodstarting point in this ‘disentanglement’.21 He suggests three traits of the‘right’ to ‘property’: The first trait relates to the right of use. He has said: ‘the rights related to the use of the land’, that is, ‘use right stricto sensu (whichcan be exclusive or not), right to appropriate the return from the land, rightto bring long-term improvements such as planting perennial crops, fencing,draining off’. The second trait relates to the right to alienate. This is theright to transfer the preceding rights, temporarily or permanently, throughmarket (land lease through fixed or share contracts, land sale, pledging,mortgaging) or non-market (loan, gift, bequeath, inheritance) devices.Finally, the third trait relates to what he calls ‘administration rights’. Hehas said the administration rights, that is the rights to define others’ rightsby controlling land use and transfer – who can do what with which parcelof land – and therefore who is excluded.22 Colin concedes that the natureof the ‘rights’ must not be reified as they are not strong andunambiguous.23 In the final analysis, the ‘disentanglement’ brings us back

20 Chapter 3 generally.21 J–P Colin ‘Disentangling property rights in land: An economic ethnography of intra-

family access in lower Cote d’ Ivoire’ Paper presented at the International Society forNew Institutional Economics Conference ‘Economic, political and social behaviour’Boulder, Colorado, 22-24 September 2006 (on file with the author).

22 As above.23 Colin (n 21 above) 7.

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to the (initial) conception of the ‘customary’ as a space and as a distincttype of ‘tenure’. It is possible to conclude from Colin’s analysis or‘disentanglement’ that ‘customary’ land tenure is shaped by the colonialconstruction of the nature of the ‘customary’; and that, in any event, themuch lauded communitarian ethos (when taken at face value as to itslegitimacy) is stratified.

The beneficial interest in land builds upon the nature of the ‘tenancy atwill’ that is located in public land under the categories of land under theLand Act. This development must always be considered in the context ofthe right to property as a social relation. I observe in Chapter 3 thatproperty has an inherent power relationship. This is the political economybasis of the beneficial interest. The interest arises out of two underlyingnotions of property as a social relation: property as a ‘socially derivedprivilege of use’ and property as a type of trust or stewardship to the civicpublic.24 In respect of property conceived as a privilege of use, Gray andGray state:

‘Property’ in land can therefore be conceptualised as those publicly endorsedforms of user which the state allows individuals to enjoy and which can bevaried or withdrawn at the sole discretion of, and on terms dictated by, thestate. ‘Property’ is no more than a highly qualified, ultimately defeasibleprivilege for the citizen. On this view, property incorporates a notion not ofright but of restraint, reflecting a state-directed responsibility to contributetowards the optimal exploitation of all land resources for communal benefit.‘Property’ no longer articulates the arrogance of entitlement, but expressesthe instead commonality of obligation, ‘property’ consisting simply ofallocations of land-based utility coordinated towards a defined commongood.25

Indeed, it has been held that the right to property must be counterweightedwith its social function and the state must proactively ensure that the publicinterest prevails.26 The second notion of property as stewardship emanatesfrom environmental welfare theory.27 In relation to the second notion,Gray and Gray observe:

If all ‘property’ in land is held subject to a wide range of publicly conditionedconstraints, it follows that the deeper constraints of ‘property’ is not absoluteor oppositional in nature. It is, instead, delimited by a pervasive sense ofcommunity-directed obligation and is rooted in a contextual network ofmutual restraint and social accommodation mediated by the agencies of thestate ... ‘Property’ becomes not a summation of individualised power over

24 K & S Gray ‘The idea of property in land’ in S Bright & J Dewar (eds) Land law:Themes and perspectives (1998) 112-114.

25 Gray & Gray (above) 112 (Emphasis in the original. Internal citation omitted).26 O’Dwyer v Council of the European Union [1995] ECR II-2071; Wachauf v Federal Republic

of Germany [1989] ECR 2609; and R v Chief Constable, ex parte International Trader’s FerryLtd [1998] QB 477.

27 Gray & Gray (n 24 above) 113.

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scarce resources, but an allocative mechanism for promoting the efficient orecologically prudent utilisation of such resources.28

The notion of property as a social relation based on the privilege of use andstewardship respectively resonates, I contend, with the public trust and thesocial trust under the Constitution.

Possession as the root to title in land is the core grounding of thebeneficial interest in land. Possession has been described as ‘the ultimatebasis of “title” to an “estate” in land’.29 The nature of ‘possession’ here isnuanced.30 It presupposes a number of factors: First, there must be aconnection of control by a person over the land.31 Second, there must bemore than the idea of mere physical occupancy. A person must have theintention to exclusively possess – the animus possidendi – which isunderlined by the person’s perception that they are entitled to defend andexert permanence of their right to property in the land.32 Statutory deviceshave developed a third and fourth element of possession. These elementsare that the possession must not be disturbed33 and there must be nosuperior title to the one claimed by a possessor.34 This notion of possessionmay form the basis of the counter-conduct of the erstwhile land deprived –as quasi-tenants at will – as they agitate for access to available arable landunder land reform in Malawi.

I have made the point that ‘customary’ land in Malawi is in actual factpublic land if the full effect of the Land Act is taken into account. Hence,the possession that accrues to the land deprived as tenants at will is inferiorto the ‘title’ of the state in respect of the public land. In light of theobligation of the ‘governors’ under the public trust and the social trustunder the Constitution, the state has a constitutional duty to ensure thegreater public good by guaranteeing that the land deprived fulfil theiraspiration for possession of parcels of land suitable for dignified living.This, as I have also argued before, requires a responsibilisation of the statebased on constituent power. In this train of thought, I echo Macpherson’swords that the ‘idea of property’ must be broadened to include ‘a right to akind of society or set of power relations which will enable the individual tolive a fully human life’.35 He states:

28 Gray & Gray (n 24 above) (Internal citations omitted).29 Gray & Gray (n 24 above) 166.30 Gray & Gray (n 24 above) 150-179. 31 See for example the discussion of the Mabo discourse in Chapter 3.32 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419.33 JA Pye (Oxford) Ltd (n 32 above).34 Harrow LBC v Qasi [2004] 1 AC 983; and JA Pye (Oxford) Ltd v United Kingdom (2008) 46

EHRR 1083.35 CB Macpherson ‘Capitalism and the changing concept of property’ in E Kamenka &

RS Neale (eds) Feudalism, capitalism and beyond (1975) 105-124 cited in Gray & Gray (n24 above) 90.

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Property will ... have to include not only a right to a share in political poweras instrumental in determining the kind of society, but a right to that kind ofsociety which is instrumental to a full and free life.36

It may be recalled that the constituency of the land deprived has access toless than 0.5 hectares of arable land and such miniscule parcels of landcannot support dignified living.

It needs mentioning that under English land law and trusts law, thebeneficial interest in land is ‘engrafted’ to a legal title under a pre-existingtrust; regardless of whether the trust is express or implied.37 There is anunderlying ‘conscientious obligation’ in the nature of the beneficial interestin land under English land law and trust law that takes precedence over a‘strict legal right’.38 It has been said, however, that establishing a beneficialinterest in land is not an exercise where a court sits ‘under a palm tree’ inorder to ‘exercise a general discretion’ that is ‘fair’.39 The process isstructured and laboured and seeks to establish the intention to set abeneficial interest.40

In relation to the land question in Malawi, it is imperative that the landdeprived as ‘tenants at will’ under public land are effectively recognised ashaving beneficial interest in land. It is argued here that while the legal titleof the state to public land lies in its eminent domain as the sovereign, theexistence of a trust arises from section 12 of the Constitution on the basisof a political economy justification. Hence, in the context of dignifiedliving, the beneficial interest may also be justified under human rights law.Here, the general argument is that the link between human rights andhuman dignity is in recognition at international law of the ‘inherent worth’of every human being.41 This is the root of human-being-ness.42 However,Kamchedzera and Banda argue that while human dignity cannot be lost,dignified living can. They argue that ‘certain conditions’ must be existentin a political economy which makes living dignified and conducive.43 Inthis sense, dignified living is not universal in reality; even though it is auniversal aspiration. They also cite a 1997 study which used material andnon-material indicators to measure a people’s well-being. They note thatin that study, lack of land was one example of non-dignified living that theparticipants highlighted.44 The human rights context of dignified living

36 Macpherson (n 35 above) 121.37 Gray & Gray (n 24 above) 820; and also Gissing v Gissing [1971] AC 886.38 Gray & Gray (n 24 above) 821.39 Gray & Gray (n 24 above).40 Gray & Gray (n 24 above) 822-824. 41 Kamchedzera & Banda (n 13 above) 76-81.42 Kamchedzera & Banda (n 13 above).43 Kamchedzera & Banda (n 13 above) 76.44 R Chambers Whose reality counts? Putting the first last (1997) in Kamchedzera & Banda

(n 13 above). Other examples of non-dignified living that were cited included: inabilityto bury the dead decently; poor housing and inadequate financial, practical andemotional help in relation to the number of dependents in each household; effect of

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reverberates with Bilchitz’s minimum core approach to the potential ofeconomic, social and cultural rights in addressing impoverishment andinequality.45

2.2.2 Securing the beneficial interest in land

If in the words of Macpherson, access to land is a hallmark for a full humanlife, I propose that in terms of the public trust and the social trust under theConstitution, the state has a duty to provide the beneficial interest in landof the land deprived both a legal and non-legal framework of support. Thetwo frameworks must be complementary and not mutually exclusive. Interms of a proposal of a legal framework, the state may consider thefollowing: The beneficial interest in land may be recognised as privateinterests in favour of the land deprived on the basis of the fact that the statehas title to the public land. Presently, there is no basis for a directrecognition of the beneficial interest as private interests. This then raisesthe presumption of alienability that is pervasive under English land lawand trusts law. In view of the socio-economic reality of the land deprivedin Malawi, the presumption of alienability immediately raises the issue ofthe threat of foreclosure and distress sales which would in turn(potentially) leave the land deprived (once again) exposed to destitution. Inlight of the threat of foreclosure and distress sales, other non-legalstrategies may have to be considered.

2.3 The land question in the political economy

The recognition of the beneficial interest in land raises its own set ofchallenges since it is brought within direct ambit of law. The point has beenrepeated throughout this book: It is perilous to privilege law in land reform;especially the tendency to translate land reform into an exclusively landlaw reform project. This is not to suggest that law does not have a role inland reform at all. However, undue privilege of law in land reformamounts to the continuation of the notion of the objectivity of law. Theobjectivity of law is a myth. Law does not always support objective goals.The subjectivity of law is writ large and, in the context of the land questionin the postcolony, the position is not different from other contexts. This isparticularly the case when close attention is given to legal rules andprinciples at the expense of equally important social and political contexts.

44 disruptive behaviour on families and communities; lack of social support; pressure toput children into employment; demeaning or low status work; and precarious foodsecurity: Kamchedzera & Banda (in this note) 79.

45 D Bilchitz Poverty and fundamental rights: The justification and enforcement of socio-economicrights (2007).

Last word: Towards a responsibilised state 163

Brink et al46 have argued that the subjectivity of law stems from thefact that the right to property as a social relation is inherently a politicalprocess and the ascertainment of the rights in land is not always inclusive,democratic and fair. A one-dimensional imposition of law as a tool forascertainment ignores the underlying power relations at play. Once law isanalysed in its political economy context, it affords an opportunity toexamine the role of law in entrenching a (capitalist) economy, defining orreproducing social relations, and its potential for radical socialtransformation.47

In this vein, I argue that once we acknowledge a nuancedunderstanding of the ‘customary’ space and the related problems thatsurround the institutions of chiefs, it becomes pertinent to understand thebeneficial interest in land in light of the role of law in the political economyas the country seeks to resolve the land question. I have discussed thedifferent strands of the nature of the ‘customary’ space in Chapter 3.Beyond that discussion, the debates that ensue in the resolution of the landquestion in Malawi must address the utility of land in three broad areas:the first area is concerned with the efficiency argument; that is, whetherthere must be more available arable land to sustain an estate sector or‘smallholder’ farming, or indeed both, in advancing the agriculturalproductivity of the country. The second area relates to policy synergy; thatis, the extent to which the various policy frameworks that inform theeconomy of the country may be harmonised in the context of the landquestion. This should explore the extent to which the macroeconomicpolicy frameworks and the land reform policy interventions can beharmonised. Finally, the third area relates to the egalitarian argumentabout fairness in the resolution of the land question. Here, the focus is theappropriation of ‘history’ and ‘culture’ on account of path dependencewhich in the end undermines the resolution of land question in thecountry.

2.3.1 ‘Efficiency’: Estate sector versus smallholders

The central thrust under the efficiency argument is that small farm sizes areeconomically inefficient as they do not optimally utilise land, labour andcapital for high farm productivity. It must be noted that the efficiencyargument has been pervasive in the land reform discourse in the country asthe discussions in the preceding Chapters demonstrate.

In the context of the land question in Malawi, the efficiency argumentis weakened when other ‘market’ factors are taken into account. Chirwa

46 R van den Brink et al Consensus, confusion, and controversy: Selected land reform issues insub–Saharan Africa (2006) 18.

47 Y Ghai et al ‘General introduction’ in Y Ghai et al (eds) The political economy of law: Athird world reader (1987) xi-xvi, xi-xii.

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has pointed out, in the context of an analysis of the Community BasedRural Land Development Project, that a complementary agricultural inputprogramme to households led to greater food security.48 He, however,concluded that sustainability of a food secure environment in ‘smallholder’households would likely be undermined by the imperfect markets intransport, labour, credit and other financial sectors which often fail to meetthe needs of the smallholders.49

The current rhetoric from the state suggests that the agricultural sectormust move towards more commercial agriculture.50 It is not clear from thestatements that have been made whether the increased commercialisationof agriculture will mean that more initiatives will be introduced to supportthe estate sector only or the smallholders only or both. Conversely, it is notclear whether the increased commercialisation will mean the introductionof mechanised agricultural practices in the smallholders since the practicesin the sector are traditional and predominantly non-mechanised.

In sum, the efficiency argument that gets polarised between thesupport for the estate sector or smallholders is reductionist. What must bepursued in the country are initiatives that boost agricultural productivitythrough, at least in the short to medium terms, the provision of state-sponsored complementary agricultural input programmes, and theperfection of the markets in the transport, labour, credit and other financialsectors by making them more smallholder-friendly.51 This frameworkwould meaningfully complement initiatives towards the development ofthe beneficial interest in land.

2.3.2 Policy synergy: The national macroeconomic frameworks and land policy interventions

I have concluded in this book that the lack of policy synergy between themacroeconomic frameworks and land policy interventions in Malawi hasundermined the resolution of the land question. I have made the point thatwhile the Land Policy is meant to be the driving force behind reform in theagrarian and other attendant sectors in the country, as long as the MalawiGrowth and Development Strategy II is the ‘overarching blueprint’ ofdevelopment in the country, all sectoral policies must conform to theStrategy as the main white paper of the state. This is an area where people-generated responsibilisation is crucial to ‘coercing’ the ‘governors’ in the

48 E Chirwa ‘Access to land, growth and poverty reduction in Malawi’ (2004) 17 (on filewith the author).

49 As above.50 The State of the Nation Address by President Bingu wa Mutharika, 23 June 2009 (on

file with the author); and the Budget Statement of 2009 by the Minister of Finance,3 July 2009 (on file with the author). See also ‘One million hectares for green belt’ TheDaily Times 31 July 2009.

51 CW Dugger ‘Ending famine, simply by ignoring the experts’ The New York Times2 December 2007.

Last word: Towards a responsibilised state 165

country to re-visit the purposes of establishing the two policy frameworksand, with a sense of urgency, harmonise them.

As the two frameworks currently stand, the land deprived are unlikelyto benefit under the land reform in the country. In this respect, thecontradiction and confusion between the two frameworks serves as ‘tools’for ‘economic conquest’ whereby the state of impoverishment is indeed ‘anintegral part of the discourse of wealth’.52

2.3.3 ‘Fairness’

Brink et al have observed that the ‘fair’ use and ownership of land changeswith time.53 The logic of colonial capitalism created a ‘rural apartheid’which in the regional context entrenched the land question in SouthernAfrica.54 Unmediated land relations that are perceived as ‘unfair’ lead topolitical and economic instability in a country.55 They have stressed that‘restoring a more equitable distribution of land will greatly contribute tomore social cohesion, which will foster more inclusive institutions andpolicies, and hence better long-term development.56

3 The responsibilised state: A restatement

In light of the discussion of the pillars of people-generatedresponsibilisation, the call for a responsibilised state emerges in thefollowing context: Under hegemonic responsibilisation that has markedland relations in the country, availability of arable land has beenconsistently lop-sided in favour of large estate agriculture. Agriculturalpolicy has been skewed towards increased land alienation to expand theestate sector. This, in effect, has meant dwindling land sizes or greaterpressure for access to arable land on the part of the land deprived. Theresponsibilisation has been possible through legal and policy devices thathave perpetuated land alienation; unsustainable commodity pricing in thesmallholders’ produce markets; exploitative labour policies; and policyresponses developed by the Bretton Woods Institutions (particularly theWorld Bank and the International Monetary Fund) that have merelylocalised market-based land reform models.

Hence, I argue that the public trust and the social trust under theConstitution confer constitutional responsibility upon the ‘governors’ intheir exercise of the right to ‘govern’ to ensure that the aspiration for

52 G Procacci ‘Social economy and the government of poverty’ in G Burchell et al (eds)The Foucault effect: Studies in governmentality (1991) 154-155.

53 Brink et al (n 46 above) 23.54 Brink et al (n 46 above) 24.55 Brink et al (n 46 above).56 As above.

166 Chapter 6

dignified living is realised. The public trust and the social trust are rootedin people sovereignty. The constitutional basis of the public trust and thesocial trust leads to the proposition of the beneficial interest in land.Finally, the re-location of land relations in the political economy providesthe basis for a more holistic approach to the resolution of the land questionin the country.

In sum, the nature of the responsibilised state under a framework ofanalysis based on people-generated responsibilisation for purposes of theresolution of the land question emerges from the triangulation of itsvarious pillars. This should allow a right to access as opposed to theperpetuation of the right to exclude under hegemonic responsibilisation;given that the latter is underpinned by market as value.57 On this basis, thepossibility of government action as recognised under the Mabo discourseand the Press Trust (Supreme Court) case provides an opportunity toameliorate the issues that arise under market-based land reform models;namely, the preference of the land owners, the absence of post-landdistribution support mechanisms, and insufficient programme financing.

4 Final word

4.1 The presupposition

The framework of a responsibilised state for purposes of enhancing theresolution of the land question in Malawi presupposes assertion andproaction. The responsibilised state only becomes a reality if there is acombination of assertion and proaction on the part of the citizen as therepository of constituent power. The transition of assimilation through thecounter-conduct of the land deprived would amount to significantintervention in shaping the manner of the responses to the land questionby the state.

However, such counter-conduct must be complemented by theinformed intervention and participation of the citizen in the developmentof (macroeconomic) policy for the country. The nature of the interventionand participation during the development of policy is where the battle ofideas must be most fierce. So far, narrow, sector-specific policyintervention; strict advancement of the efficiency argument; one-dimensional, legal positivist approaches; and the lack of meaningfultriangulation of all the critical elements of the political economy – all these– have undermined the resolution of the land question in the country.People-generated responsibilisation proffers a holistic, people-basedapproach to the land question, where for example, a fair land redistribution

57 Macpherson (n 35 above) on the distinction between the ‘right to access’ and the ‘rightto exclude’.

Last word: Towards a responsibilised state 167

model may be re-visited. Second, there is an urgent need in the country toexplore ways of relieving pressure off land as the only viable resource fordignified living. This can be through policy interventions that may lead tothe development of non-agriculture-based economic enterprise for theerstwhile land deprived.

4.2 The wider angle

Beyond the parameters of the responsibilised state based on people-generated responsibilisation, I would like to make some generalobservations regarding the wider context of the book:

4.2.1 Less government, more governance

Governance is the epitome of hegemonic responsibilisation. It has beennoted that under governance, the coercive authority of the state is asufficient but unnecessary tenet to ‘governing’. Indeed, governance entailsthe development of guidelines, principles, codes of conduct and standardsthat are ‘produced’ by the state, inter-state agencies and other non-stateplayers under what has been called a ‘market of authorities’.58 Under agovernmentality analysis, it can be said that what matters is who cangovern; what governing is; what or who is governed.59

It has also been observed that the development of the various policyframeworks in Malawi under land reform or the wider macro-economyhas not been adequately synchronised. It has been disjunctive particularlyin relation to the land question. I suggest that this disjunction is not anoversight; it is calculative. In any event, Foucault has noted under thephenomenon of scarcity that in relation to land, government interventionfocuses on production. Further, ‘uncertainty’ is a feature of biopower. Thenature of the macroeconomic frameworks in Malawi do not adequatelysupport the land deprived. Such that even though there is a parallel processof land redistribution under the willing seller/willing buyer approach, andthe implementation of macroeconomic reform under poverty reductionstrategies such as the Malawi Growth and Development Strategy II, in myview, the lack of policy synergy in the country will unlikely resolve theunderlying issues relating to structural impoverishment. In any case, I havenoted in Chapter 4 that land redistribution is not a viable long-termsolution to the land question. At an average land size of 1 hectare (presentfigures reveal landholding sizes of less than 0.22 hectares) and with anannual population growth of 3,2 per cent, there would be no arable land toredistribute in the country by 2018. There is an urgent need to developtriangulated policy interventions that explore the development of other

58 Shamir (n 5 above).59 C Gordon ‘Governmental rationality: An introduction’ in G Burchell et al (eds) The

Foucault effect: Studies in governmentality (1991) 1.

168 Chapter 6

non-agricultural economic activity given that at present the country’seconomy is heavily agro-based with the agricultural sector accounting for85 per cent of the total work force.

4.2.2 The right to ‘govern’ and the problem of abstraction

I raise the issue of ‘abstraction’ in ‘governing’ generally, and let alone inrelation to political economies such as Malawi. There is a need to examinewhether the degree of specificity in relation to a public institution thatbears a particular duty correlates to effectiveness in delivery of a duty oreffectiveness of a remedy under a process of redress. For example, section13 of the Constitution provides that the state shall ‘promote the welfareand the development of the people of Malawi’ and shall progressivelyadopt and implement policies and legislation to achieve some fifteennational goals.60 The goals are varied and the question arises whether aspecific description of a public institution responsible for each nationalgoal augurs well for the attainment of the particular goal.

A possible quick response is that the right to ‘govern’ must adhere tothe tenets of the public trust and the social trust under section 12 of theConstitution. To the extent that there are challenges in the enforcement ofthe obligations of the ‘governors’ in the postcolonial state, I suggest that theconsent that is inherent under the public trust and the social trust alsocarries with it a corresponding ‘fiduciary risk’. This risk arises when the‘governors’ fail to deliver their obligation under the liberal constitutionalorder. Indeed in the context of the land question, the ‘governors’ present afiduciary risk since for self-interest or otherwise, some 10.48 million peoplein Malawi have access to less than 0.5 hectares of arable land and in theprocess are prone to a less dignified livelihood.

5 The thesis: A précis

This book is a comprehensive law and policy analysis of land reform inMalawi. The broad contextual parameters of the book in relation to theland question in the country are twofold: The linkage between (global)development discourse and land reform in Malawi; and the discursivecontinuity of colonial and postcolonial law and policy, and the attendantoutcomes of the hegemonic responsibilisation. Against this background,the central argument of the book is restated thus: The land question inMalawi can be resolved through the emergence of a responsibilised stateunder people-generated responsibilisation. People-generated responsibili-sation is a holistic, bottom-up approach to tackling asymmetrical access to,

60 The fifteen goals relate to: gender equality; nutrition; health; the environment; rurallife; education; persons with disabilities; children; the family; the elderly; internationalrelations; peaceful settlement of disputes; administration of justice; economicmanagement; and public trust and good governance.

Last word: Towards a responsibilised state 169

and ownership of, land in the country. This, it is suggested, must entailproactive, people-based action for a triangulated approach to land reforminvolving law, macroeconomic frameworks like poverty reductionstrategies, and the adherence to the terms of governing under theConstitution. Under people-generated responsibilisation the respon-sibilised state must desist from an automatic translation of land reform intoland law reform in the resolution of the land question in Malawi.

171

BIBLIOGRAPHY

Adams, M (2004) A review of DFID’s engagement with land reform in Malawi (on filewith the author)

Adamson, W (1980) Hegemony and revolution: A study of Antonio Gramsci’s politicaland social theory Berkeley: University of California Press

Adelman, S ‘The unexceptional exception: Sovereignty, human rights andbiopolitics’ available at http://ssrn.com/abstract=1534608 (accessed 25 October2012)

Adelman, S & Paliwala, A ‘Law and development in crisis’ in Adelman, S &Paliwala, A (eds) (1993) Law and crisis in the third world London: Hans Zell

Akuffo, K ‘The conception of land ownership in African customary law and itsimplications for development’ (2009) 17 African Journal of International andComparative Law 57

Ali, S & Kelly, M ‘Ethics and social research’ in Seale, C (ed) (2004) Researchingsociety and culture London; New Delhi; Thousand Oaks, California: SagePublications

Allott, AN (1966) The Ashanti law of property Stuttgart Amin, S (1976) Unequal development: An essay on the social formations of peripheral

capitalism Hassocks: Harvester Anderson, E (1995) Value in ethics and economics Cambridge, Mass: Harvard

University Press Anghie, A ‘Civilization and commerce: The concept of governance in historical

perspective’ (2000) 45 Villanova Law Review 887 Anonymous ‘Malawi: The rise and rise of ethnic politics’ Africa Confidential 20

November 2009, Volume 50, Number 23, 9 Auerbach, NN ‘The meanings of neoliberalism’ in Roy, RK; Denzau, AT; &

Willett, TD (eds) (2007) Neoliberalism: National and regional experiments with globalideas London and New York: Routledge

Ayers, AJ ‘Demystifying democratization: The global constitution of (neo)liberalpolities in Africa’ (2006) 27 Third World Quarterly 321

Baker, C (1993) Seeds of trouble: Government policy and land rights in Nyasaland, 1946-1964 London, New York: British Academic Press

Banda, S ‘Land law reform: A comparative analysis of South Africa’s labourtenancy contract and Malawi’s tenant worker’s contract’ (2007) Oxford UniversityCommonwealth Law Journal 201

Barros, F; Sauer, S; & Schwartzman, S (eds) (2003) The negative impact of the WorldBank market based land reform Brasilia; Rede Brasil

Barthes, R (1977) Images, music, text London: Fontana PressBartra, A & Ortero, G ‘Indian peasant movements in Mexico: The struggle for

land, autonomy and democracy’ in Moyo, S & Yeros, P (eds) (2005) Reclaimingthe land: The resurgence of rural movements in Africa, Asia and Latin America London;New York: Zed Books

Basok, T & Ilcan, S ‘In the name of human rights: Global organizations andparticipating citizens’ (2006) 10 Citizenship Studies 309

Baxi, U (1988) Law and poverty: Critical essays Bombay: NM Tripathi Baxi, U ‘Global development and impoverishment’ in Cane, P & Tushnet, M (eds)

(2003) The Oxford handbook of legal studies Oxford: Oxford University Press

172 Bibliography

Baxter, H ‘Bringing Foucault into law and law into Foucault’ (1996) 48 StanfordLaw Review 449

BDPA (1998) Customary land utilization study: Report on the socio-economic study onland tenure Lilongwe: Malawi

Beck, U (2005) Power in the global age: A new global political economy trans K CrossCambridge: Country Press

Berger, P & Luckmann, T (1971) The social construction of reality: A treatise in thesociology of knowledge Hamondsworth: Penguin

Bernstein, H ‘Rural land and land conflicts in sub-Saharan Africa’ in Moyo, S &Yeros, P (eds) (2005) Reclaiming the land: The resurgence of rural movements in Africa,Asia and Latin America London; New York: Zed Books

Berry, S ‘Debating the land question in Africa’ (2002) 44 Comparative Studies inSociety and History 638

Bilchitz, D (2007) Poverty and fundamental rights: The justification and enforcement ofsocio-economic rights

Bix, B (2006) Jurisprudence: Theory and context Sweet & MaxwellBless, H (2004) Social cognition: How individuals construct reality Hove: Psychology

Press Booth, D (2003) Fighting poverty in Africa: Are PRSPs making A difference? London:

Overseas Development InstituteBooth, D; Cammack, D; Harrigan, J; Kanyongolo, E; Mataure, M; & Ngwira, N

‘Drivers of change and development in Malawi’ Overseas DevelopmentInstitute, Working Paper Number 261, Brighton(2006)

Borras Jr, S ‘Can redistributive reform be achieved via market-based voluntary landtransfer schemes? Evidence and lessons from the Philippines’ (2005) 41 Journalof Development Studies 90

Borras Jr, S (2007) Pro-poor land reform: A critique Ottawa: University of OttawaPress

Borras Jr, S; Hall, R; Scoones, I; White, B; & Wolford, W ‘Towards a betterunderstanding of global land grabbing: An editorial introduction’ (2011) 38Journal of Peasant Studies 209

Bourdieu, P (1990) In other words: Essays towards a reflexive sociology Cambridge:Country Press

Braithwaite, J & Drahos, P (2000) Global business regulation Cambridge: CambridgeUniversity Press, 2000

Burchell, G ‘Review essay: Confession, resistance, subjectivity’ (2009) 13 Journalfor Cultural Research 159

Burr, V (2003) Social constructionism London: RoutledgeCammack, D ‘Malawi: The politics of hunger’ Overseas Development Institute

Opinions, April 2006, available at http://www.odi.org.uk/resources/odi-publications/opinions/69-diana-cammack-malawi-politics-hunger.pdf(accessed January 2015)

Cammack, D (November 2011) ‘Malawi’s political settlement in crisis, 2011’Background paper 04, APPP

Cammack, D; Golooba-Mutebi, F; Kanyongolo, F; & O’Neil, T‘Neopatrimonialpolitics, decentralization and local government: Uganda and Malawi in 2006’Good Governance, Aid Modalities and Poverty Reduction Working PaperSeries, Working Paper Number 2, 2007

Carr, B (ed) (2007) Universe or multiverse? Cambridge: Cambridge University Press

Bibliography 173

Carver, R ‘Review of Malawi at the crossroads: The postcolonial political economy byGuy CZ Mhone (ed) and Kamuzu Banda of Malawi: A study in promise, power andparalysis by John Lloyd Lwanda’ (1994) 20 Journal of Southern African Studies 486

Chambers, R (1997) Whose reality counts? Putting the first last London: IntermediateTechnology Publications

Chanock, M (1985) Law, custom and social order Cambridge, Cambridge UniversityPress

Chaskalson, M ‘The property clause: Section 28 of the Constitution’ (1994) 10South African Journal on Human Rights 131

Chibundu, M ‘Law in development: On tapping, gourding and serving palm-wine’(1997) 29 Case Western Reserve Journal of International Law 167

‘Chiefs gang up against Customary Land Bill’ Nyasa Times 26 June 2013, availableat http://www.nyasatimes.com/2013/06/26/malawi-chiefs-gang-up-against-customary-land-bill/ (accessed on 18 October 2013)

‘Chiefs reject land bill on land tenure’ The Nation 8 March 2006Chijere Chirwa, W ‘The politics of ethnicity and regionalism in contemporary

Malawi’ (1994) 1 African Rural and Urban Studies 93Chimni, BS ‘International institutions today: An imperial global state in the

making’ (2004) 15 European Journal of International Law 1 Chinsinga, B ‘The interface between tradition and modernity: The struggle for

political space at the local level in Malawi’ (2006) 54 Civilizations 255Chinsinga, B ‘Resurrecting the vestiges of a developmental state in Malawi?

Reflections and lessons from the 2005/2006 Fertilizer Subsidy Programme’Paper presented at the 2007 Guy Mhone Memorial Conference onDevelopment: Public Sector Reforms in Africa: Retrospect and Prospect, 22-24August 2007, Zomba, Malawi (on file with the author)

Chinsinga, B ‘Exploring the politics of land reforms in Malawi: A case study of theCommunity Based Rural Land Development Programme (CBRLDP)’ IPPGDiscussion Paper Number 20, University of Manchester (2008)

Chipeta, M ‘Political process, civil society and the state’ in Mhone, G (ed) (1992)Malawi at crossroads: The postcolonial political economy Harare: SAPES Trust

Chirwa, DM ‘A full loaf is better than half: The constitutional protection ofeconomic, social and cultural rights in Malawi’ (2005) 49 Journal of African Law207

Chirwa, E ‘Access to land, growth and poverty reduction in Malawi’ (August,2004) (on file with the author)

Chirwa, E ‘Access to Land Farm Investments and Food Production in Malawi’IPPG Discussion Paper Number 18, University of Manchester, 2008

‘Chitakale estates transform lives’ Nyasa Times available at http://www.nyasatimes.com/national/chitakale-estates-transforms-lives.html(accessed 5 December 2009)

Christians, CG ‘Ethics and politics in qualitative research’ in Denzin, N & Lincoln,Y (eds) (2005) The Sage handbook of qualitative research London; New Delhi;Thousand Oaks, California: Sage Publications

Clarke, J ‘New labour’s citizens: Activated, empowered, responsibilized,abandoned?’ (2005) 25 Critical Social Policy 447

Colin, J-P ‘Disentangling property rights in land: An economic ethnography ofintra-family access in lower Cote d’ Ivoire’ Paper presented at the InternationalSociety for New Institutional Economics Conference ‘Economic, political andsocial behaviour’ Boulder, Colorado, September 22-24 2006 (on file with theauthor)

174 Bibliography

Commission for Africa Our common interest available at http://www.commissionforafrica.org/english/report/thereport/english/11-03-05_cr_report.pdf (accessed 13 January 2014)

‘Concept, strategic plan for green belt in place,’ The Daily Times, 25 August, 2011Cotula, L ‘The new enclosures? Polanyi, international investment law and the

global land rush’ (2013) 34 Third World Quarterly 1605Cotula, L; Vermeulen, S; Leonard, R; & Keeley, J Land grab or development

opportunity (2009)Cousins, B ‘Legislating negotiability: Tenure reform in post-apartheid South

Africa’ in Juul, K & Lund, C (eds) (2002) Negotiating property in AfricaPortsmouth, New Hampshire: Heinemann

Craig, D & Porter, D ‘Poverty reduction strategy papers: A new convergence’(2003) 31 World Development 53

D’Souza, R ‘Liberal theory, human rights and water-justice: Back to square one?’2008 (1) Law, Social Justice & Global Development Journal http://www.go.warwick.ac.uk/elj/lgd/2008_1/desouza (accessed 14 October 2012)

Daviron, B & Gibbon, P ‘Global commodity chains and African export agriculture’(2002) 2 Journal of Agrarian Change 137

Dean, M (1999) Governmentality: Power and rule in modern society London: SageDeininger, K & Binswanger, H ‘Evolution of the World Bank’s land policy:

Principles, experiences and future challenges’ (1999) 14 The World Bank ResearchObserver 247

Demmers, J; Fernández Jilberto, AE; & Hogenboom, B (2004) Good governance inthe era of global neoliberalism; Conflict and depoliticization in Latin America, EasternEurope, Asia and Africa London: Routledge

Denzin, N & Lincoln, Y ‘Introduction: Entering the field of qualitative research’ inDenzin, N and Lincoln, Y (eds) (1999) The landscape of qualitative research: Theoriesand issues London; New Delhi; Thousand Oaks, California: Sage

Denzin, N & Lincoln, Y (eds) (2005) The Sage handbook of qualitative researchLondon; New Delhi; Thousand Oaks, California: Sage Publications

De Soto, H (2001) The mystery of capital: Why capital triumphs in the West and failselsewhere London: Black Swan

De Sousa Santos, B (2002) New legal common sense: Law, globalization andemancipation London: Butterworths

De Sousa Santos, B ‘Beyond neoliberal governance: The World Social Forum assubaltern cosmopolitan politics and legality’ in De Sousa Santos, B &Rodriguez–Garavito, CA (eds) (2005) Law and globalization from below: Towards acosmopolitan legality Cambridge: Cambridge University Press

Deutsch, D ‘The structure of the multiverse’ available at http://xxx.lanl.gov/ftp/quant-ph/papers/0104/0104033.pdf (accessed 24 June 2011)

Diawara, M ‘Reading Africa through Foucault: VY Mudimbe’s reaffirmation ofthe subject’ (1990) 55 October 79

Dick Howard, AE et al ‘Commentary on the Constitution of Malawi’ January,1995 (on file with the author)

Dokali, E (ed) (1995) Building blocks of the Constitution of Malawi, 1995 (on file withthe author)

Duff, HL (1903) Nyasaland under the foreign office London: George Bell & SonsDugger, CW ‘Ending famine, simply by ignoring the experts’ The New York Times

2 December 2007Dupont, D & Pearce, P ‘Foucault contra Foucault: Rereading the

“governmentality” papers’ (2001) 5 Theoretical Criminology 123

Bibliography 175

Du Toit, A ‘The end of restitution: Getting real about land claims’ in Cousins, B(ed) (2000) At the crossroads: Land and agrarian reform in South Africa into the 21stCentury Cape Town: Programme for Land and Agrarian Studies, University ofWestern Cape and National Land Committee

Dworkin, R (1977) Taking rights seriously London: DuckworthDworkin, R (1986) Law’s Empire Cambridge, Mass.: Belknap Press Eisenberg, A ‘Different constitutional formulations of compensation clauses’

(1993) 9 South African Journal on Human Rights 411 Eisenberg, A ‘“Public purpose” and expropriation: Some comparative insights and

the South African Bill of Rights’ (1995) 11 South African Journal on Human Rights207

Ekeh, PP ‘Colonialism and the two publics in Africa: A theoretical statement’(1975) 17 Comparative Studies in Society and History 91

Elias, TO (1962) British colonial law: A comparative study of the interaction betweenEnglish and local laws in British dependencies London: Stevens & Sons

Elias, TO (1971) Nigerian land law London: Sweet & MaxwellEly, JW (1992) The guardian of every other right: A constitutional history of property rights

New York: Oxford University Press, 1992 Engel, U & Gomonda, N (2001) Prospects of crisis prevention and conflict management

in Mulanje District, Malawi (Southern Region) Deutsche Gesellschaft fürTechnische Zusammenarbeit GmbH

Environment Management Act Cap. 60: 02, Laws of MalawiErdman, G & Engel, U ‘Neopatrimonialism reconsidered: Critical review and

elaboration of an elusive concept’ (2007) 45 Commonwealth & Comparative Politics95

Escobar, A (1995) Encountering development: The making and unmaking of the thirdworld Princeton: Princeton University Press

Fairclough, N (1992) Discourse and social change Cambridge: Country PressFaundez, J ‘Legal reform in developing and transition countries – Making haste

slowly’ (2001) 1 Law, Social Justice and Global Development available at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/faundez/ (accessed30 June 2012)

Fitzpatrick, P ‘Traditionalism and tradition law’ (1984) 28 Journal of African Law 20Fitzpatrick, P (1992) The Mythology of Modern Law London: RoutledgeFitzpatrick, P (2001) Modernism and grounds of law Cambridge: Cambridge

University PressFitzpatrick, P (2008) Law as resistance: Modernism, imperialism, legalism Aldershot:

AshgateFoucault, M (1979) The will to knowledge: The history of sexuality – Vol 1 trans

R Hurley Hamondsworth: Penguin, 1979Foucault, M (1980) Power/knowledge: Selected interviews and other writings, 1972-1977

ed and trans C Gordon New York: The Harvester PressFoucault, M (1991) Discipline and punish: The birth of a prison trans A Sheridan

Hamondsworth: PenguinFoucault, M ‘Governmentality’ in Burchell, G; Gordon, C; & Miller, P (eds) (1991)

The Foucault effect: Studies in governmentality Hemel Hempstead: HarvesterWheatsheaf

Foucault, M ‘Incitement to Discourse’ in Jaworski, A & Coupland, N (eds) (1999)The discourse reader London and New York: Routledge

176 Bibliography

Foucault, M ‘Interview with Michel Foucault’ in Faubion, J (ed) (2000) Power NewYork: New Press

Foucault, M (2003) Abnormal: Lectures at the Collège de France 1974-1975 transG Burchell London: Verso

Foucault, M (2003) ‘Society must be defended’: Lectures at the Collège de France, 1975-76trans D Macey London: Allen Lane

Foucault, M (2009) Security, territory, population: Lectures at the Collège de France,1977-78, trans G Burchell New York: Picador; Palgrave Macmillan

Freeman, MDA (2001) Lloyd’s introduction to jurisprudence London: Sweet &Maxwell

Garner, BA & Garner, BA (eds) (2004) Black’s law dictionary St Paul, Minnesota:West

George, A ‘The difficulty of defining “property”’ (2005) 25 Oxford Journal of LegalStudies 793

Gertzler, J ‘Property, personality and violence’ in Endicott, T; Getzler, J; & Peel,E (eds) (2006) Properties of law: Essays in honour of Jim Harris Oxford: OxfordUniversity Press

Ghai, YP ‘General introduction’ in Ghai, YP; Luckham, R; & Snyder, FG) (1987)The political economy of law: A third world reader Delhi: Oxford University Press

Gluckman, M (1965) The ideas in Barotse jurisprudence New Haven: Yale UniversityPress

Golder, B & Fitzpatrick, P (2009) Foucault’s law Abingdon: RoutledgeGondwe, DK (1992) Political economy, ideology and the impact of economics on the third

world New York, London: PraegerGordon, C ‘Governmental rationality: An introduction’ in Burchell, G; Gordon,

C; & Miller, P (eds) (1991) The Foucault effect: Studies in governmentality HemelHempstead: Harvester Wheatsheaf

Gordon, R & Sylvester, J ‘Deconstructing development’ (2004) 22 WisconsinInternational Law Journal 1

Gosh, S ‘Review: Globalization from the bottom up: A review essay of JohnBraithwaite and Peter Drahos Global business regulation’ (2005) 39 Law & Society965

Government of Malawi (1994) Proceedings of Parliament, 30th Session, 1st Meeting, 30June-8 July 1994 Zomba: Government Printer

Government of Malawi (1994) Proceedings of Parliament, 30th Session, 2nd Meeting, 24October-11 November 1994 Zomba: Government Printer

Government of Malawi (1995) Proceeding of Parliament, 30th Session, 3rd MeetingZomba: Government Printer

Government of Malawi National long term development perspective, 1997-2020, Volume1 available at http://www.sdnp.org.mw/~esaias/ettah/vision-2020/ (accessed4 December 2009)

Government of Malawi (1999) Report of the Presidential Commission of Inquiry on LandPolicy Reform, Volume 1 Zomba: Government Printer

Government of Malawi (2002) Malawi poverty reduction strategy paper Lilongwe:Ministry of Finance

Government of Malawi (2002) National land policy Lilongwe: Government PrinterGovernment of Malawi (2002) Proceedings of Parliament, 35th Session, 2nd Meeting,

Lilongwe: Government PrinterGovernment of Malawi (2005) Community based rural land development project: Project

implementation manual Lilongwe: Ministry of Lands, Housing and Surveys

Bibliography 177

Government of Malawi (2005) Malawi growth and development strategy Lilongwe:Ministry of Finance

Government of Malawi ‘2008/2009 Budget statement delivered by the Minister ofFinance to the National Assembly’ available at http://www.sdnp.org.mw/~stewart/Budget_Speech_2008_09.pdf

Government of Malawi ‘Malawi’s economic miracle’, State of the Nation Addressby His Excellency Ngwazi Dr Bingu wa Mutharika, President of the Republic ofMalawi on the occasion of the State Opening of the 41st Session of Parliamentand the 2009/2010 Budget Meeting, 23 June 2009 (on file with the author)

Government of Malawi ‘Ministerial budget statement to the National Assembly’3 July 2009 (on file with the author)

Government of Malawi (2010) Green Belt Initiative Lilongwe, MalawiGovernment of Malawi (2011) Green Belt Initiative: Strategic plan – 2011-2016

Lilongwe: Office of the President and CabinetGovernment of Malawi & World Bank (2007) The community based rural land

development project (Kudzigulira Malo): Mid-term review report (on file with theauthor)

Government of Tanzania (1994) Report of the Commission of Inquiry into Land Matters,Volume I Dar es Salaam: Ministry of Lands, Housing and Urban Development

Gramsci, A (1971) Selections from the prison notebooks of Antonio Gramsci ed and transby Hoare, Q & Smith, GN London: Lawrence & Wishart

Gray, K ‘Property in thin air’ (1991) 50 Cambridge Law Journal 252Gray, K & Gray, S ‘The idea of property in land’ in Bright, S & Dewar, J (eds)

(1998) Land law: Themes and perspectives Oxford: Oxford University Press, 1998Gray, K & Gray, S (2009) Elements of land law Oxford: Oxford University Press‘Green belt tractors arrive,’ The Nation, 26 October, 2011Griffin, K; Rahman Khan, A; & Ickowitz, A ‘Poverty and the distribution of land’

(2002) 2 Journal of Agrarian Change 279Griffin, K; Rahman Khan, A; & Ickowitz, A ‘In defence of neo-classical neo-

populism’ (2004) 4 Journal of Agrarian Change 361Griffiths, C ‘Land tenure in Malawi and the 1967 reforms’ unpublished LLM

dissertation, University of Malawi, 1981 Grix, J (2004) The foundations of research Basingstoke, UK; New York: Palgrave

MacmillanGyampo, REV ‘The 2008 political parties’ code of conduct in Ghana: A toothless

bulldog?’ (2008) 2 African Journal of Political Science and International Relations 38Hall, R ‘Transforming rural South Africa? Taking stock of land reform’ in

Ntsebeza, L & Hall, R (eds) (2007) The land question in South Africa: The challengeof transformation and redistribution Cape Town: HSRC Press

Hanieh, A ‘Praising empire: Neoliberalism under Pax Americana’ in Mooers, C(ed) (2006) The new imperialists: Ideologies of empire Oxford: One World

Hardin, G ‘The tragedy of the commons’ (1968) 162 Science 1243 Hardt, M & Negri, A (2001) Empire Cambridge, MA; London: Harvard University

PressHarrigan, J ‘Malawi’ in Mosley, P; Harrigan, J; & Toye, J (eds) (1991) Aid and

power: The World Bank and policy-based lending: Volume 2 – Case studies London:Routledge

Harrigan, J ‘U turns and full circles: Two decades of agricultural reform in Malawi,1981-2000’ (2003) 31 World Development 847

Harvey, D (2007) A brief history of neoliberalism Oxford: Oxford University Press

178 Bibliography

Haworth, D (2000) Discourse Buckingham: Open University PressHay, C ‘The genealogy of neo-liberalism’ in Roy, RK; Denzau, AT: & Willett, TD

(eds) (2007) Neoliberalism: National and regional experiments with global ideasLondon and New York: Routledge

Hayek, FA (1976) ‘The market order or catallaxy’ in Hayek, FA Law, legislation andliberty: Volume 2 – The mirage of social justice Chicago: The University of ChicagoPress

Hegel, GWF (1952) Philosophy of right trans TM Know Oxford: Oxford UniversityPress

Heller, MA ‘The tragedy of the anticommons: Property transitions from Marx tomarkets’ (1998) 111 Harvard Law Review 621

Henige, D (2005) ‘Oral tradition as a means of reconstructing the past’ in Philips,JE (ed) Writing African history Rochester: University of Rochester Press

HMSO (1962) Report of the Nyasaland Constitutional Conference London: H.M.S.O.Hodgson, GM (2001) How economics forgot history: The problem of historical specificity

in social science London: RoutledgeHohfeld, WN (1978) Fundamental legal conceptions as applied in judicial reasoning

Westport: Greenwood Press Holden, S; Kaarhus, R; Lunduka, R ‘Land policy reform: The role of markets and

women’s land rights in Malawi’ Oslo: NORAGRIC Report Number 36 (2006)Holston, J & Appadurai, A ‘Cities and citizenship’ in Holston, J (ed) (1999) Cities

and citizenship Durham, North Carolina: Duke University PressHonore, AM ‘Ownership’ in Guest, AG (ed) (1961) Oxford essays in jurisprudence

Oxford: Clarendon PressHonore, T ‘Property and ownership: Marginal comments’ in Endicott, T; Getzler,

J; & Peel, E (eds) (2006) Properties of law: Essays in honour of Jim Harris Oxford:Oxford University Press

Hunt, A & Wickham, G (1994) Foucault and law: Towards a sociology of law asgovernance London: Pluto Press

Huntington, SP ‘Democracy’s third wave’ (1991) 2 Journal of Democracy 12 Ibik, JO (1971) Restatement of African law: Volume 4, Malawi II – The law of land,

succession, movable property, agreements and civil wrongs London: Sweet & MaxwellIIRD (2005) Final draft report for the Makandi Estate case study Lilongwe, Ministry of

Lands, Housing and SurveysIMF ‘Factsheet: Poverty reduction strategy papers (PRSP)’ http://www.imf.org/

external/np/exr/facts/prsp.htm (accessed 15 January 2009)Jackson, R (2007) Sovereignty: The evolution of an idea Cambridge: Country PressJames, W (1895) The will to believe (1895)Jenkins, R & Tsoka, M ‘Malawi’ in Booth, D (ed) (2003) Fighting poverty in Africa:

Are PRSPs making a difference? London: Overseas Development InstituteJoseph, J ‘Neoliberalism, governmentality and social regulation’ Paper prepared

for SAID Workshop, April, 2007 (on file with the author)Kalinga, O The Ngonde Kingdom of Northern Malawi c1600-1895, unpublished PhD

Thesis: University of London, 1974Kalinga, O ‘The Master Farmers’ Scheme in Nyasaland, 1950-1962: A study of a

failed attempt to create a “Yeoman” Class’ (1993) 92 African Affairs 367Kamchedzera, G ‘Land tenure relations, the law and development in Malawi’ in

Mhone, G (ed) (1992) Malawi at crossroads: The postcolonial political economyHarare: SAPES Trust

Bibliography 179

Kamchedzera, G & Banda, CU ‘The right to development, the quality of rural life,and the performance of legislative duties during Malawi’s first five years ofmultiparty politics’ Research Dissemination Seminar Number Law/2001-2002/001, available at http://www.sarpn.org.za/documents/d0001966/index.php(accessed 20 July 2011)

Kamchedzera, G & Banda, CU ‘Dignified rural living, the right to development,multiparty politics and legislation in Malawi’ (2009) 25 South African Journal onHuman Rights 73

Kandawire, JAK ‘Thangata in pre-colonial and colonial systems of land tenure inSouthern Malawi with special reference to Chingale’ (1977) 47 Africa: Journal ofthe International African Institute 185

Kanyongolo, FE ‘The limits of liberal democratic constitutionalism in Malawi’ inPhiri, KM & Ross, K (eds) (1998) Democratization in Malawi: A stocktakingBlantyre: CLAIM

Kanyongolo, FE Human rights jurisprudence in polarized societies: A comparativeanalysis of Malawi and South Africa, unpublished PhD Thesis, University of EastAnglia, 1999

Kanyongolo, FE ‘Land occupations in Malawi: Challenging the neoliberal legalorder’ in Moyo, S & Yeros, P (eds) (2005) Reclaiming the land: The resurgence ofrural movements in Africa, Asia and Latin America London; New York: Zed Books

Kanyongolo, FE ‘Law, land and sustainable development in Malawi’ in Amanor,KS & Moyo, S (eds) (2008) Land and sustainable development in Africa London: ZedBooks

Kanyongolo, NR Social security and women in Malawi: A legal discourse on solidarity ofcare, unpublished PhD Thesis, University of Warwick, 2007

Kearney, R ‘Between tradition and Utopia: The hermeneutical problem of myth’Wood, D (ed) (1991) On Paul Ricouer: Narrative and interpretation London:Routledge

Kelman, HC ‘Compliance, identification and internalization: Three processes ofattitude change’ (1958) 2 Conflict Resolution 51

Kendall, G ‘From liberalism to neo-liberalism’ Paper presented to the SocialChange in the 21st Century Conference, 21 November 2003, available at http://eprints.qut.edu.au/archive/00000134/01/Gavin_Kendall.pdf (accessed 14January 2015) (on file with the author)

Kishindo, P ‘Customary land tenure and the new land policy in Malawi’ (2004) 22Journal of Contemporary African Studies 213

Krishnamurthy, BS ‘Economic policy, land and labour in Nyasaland’ in Pachai, B(ed) (1972) The early history of Malawi London: Longman

Kydd, J & Christiansen, R ‘Structural changes in Malawi since independence:Consequences of a development strategy based on large-scale agriculture’ (1982)10 World Development 355

Lahiff, E ‘“Willing buyer, willing seller”: South Africa’s failed experiment inmarket-lLed agrarian reform’ (2007) 28 Journal of Agrarian Change 1577

Lal, D (2006) In praise of empires: Globalization and order New York: MacmillanLal, D & Myint, H (1996) The political economy of poverty, equity and growth. Oxford:

ClarendonLele, U ‘Structural adjustment, agricultural development and the poor: Some

lessons from the Malawian experience’ (1990) 18 World Development 1207 Locke, J (1988) Two treatises of government Cambridge: Cambridge University PressLoughlin, M & Walker, N (eds) (2007) The paradox of constitutionalism: Constituent

power and constitutional form Oxford: Oxford University Press

180 Bibliography

Löweinheim, O ‘The responsibility to responsibilize: Foreign offices and theissuing of travel warnings’ (2007) 1 International Political Sociology 203

Lugard, Lord (1965) The dual mandate in British Tropical Africa London: Frank Cass& Co

Lyotard, J-F (1986) The postmodern condition: A report on knowledge transG Bennington & B Massumi Manchester: Manchester University Press

Machika, MRE Law and economic development: A study of land law and agriculture inMalawi, Kenya and Zambia unpublished PhD Thesis, University of Birmingham,1983

Macpherson, CB ‘Capitalism and the changing concept of property’ inKamenka, E & Neale, RS (eds) (1975) Feudalism, capitalism and beyond Canberra:Edward Arnold

Mafeje, A ‘The agrarian question, access to land, and peasant responses in sub-Saharan Africa’ Civil Society and Social Movements Programme Paper Number6, Geneva, UNRISD (2003)

Malawi Land Act Cap. 57:01, Laws of MalawiMalawi Law Commission Report on the technical review of the Constitution, Malawi

Gazette Extraordinary, 16 November 1998Malawi Law Commission Draft report on the review of land-related laws (2006)Malawi Law Commission Report on the review of the Constitution Malawi Gazette

Extraordinary, 21 September 2007Malawi Law Commission Report on the review of land-related laws, Malawi Gazette

Extraordinary, 9 April 2010Mamdani, M (1996) Citizen and subject: Contemporary Africa and the legacy of late

colonialism Princeton, New Jersey: Princeton University Press Manji, A ‘Legal paradigms in contemporary land reform’ (2006) 44 Commonwealth

& Comparative Politics 151Manji, A (2006) The politics of land reform in Africa: From communal tenure to free

markets London: Zed BooksMarks, S (2000) The riddle of all constitutions: International law, democracy, and the

critique of ideology Oxford: Oxford University PressMathauer, I & Imhoff, I ‘Health worker motivation in Africa: The role of non–

financial incentives and human resource management tools’ (2006) 4 HumanResources for Health 24

Mazrui, AA ‘The tensions of crossing the floor in East Africa’ in Mazrui, AA (ed)(1969) Violence and thought: Essays on social tensions in Africa London: Longman

Mbembe, A (2001) On the postcolony Berkeley: University of California PressMcAuslan, P (2003) Bringing the law back in: Essays in land, law and development

Aldershot: AshgateMcAuslan, P ‘Legal pluralism as a policy option: Is it desirable, is it doable?’

UNDP-International Land Coalition Workshop: Land rights for Africandevelopment: From knowledge to action Nairobi, 31 October-3 November, 2005(Proceedings: http://www.undp.org/drylands/lt-workshop-11-05.htm(accessed 23 May 2011))

McConville, M & Chui, WH ‘Introduction and overview’ in McConville, M &Chui, WH (eds) (2007) Research methods for law Edinburgh: Edinburgh UniversityPress

McCracken, J ‘Democracy and nationalism in historical perspective: The case ofMalawi’ (1998) 97 African Affairs 231

Meagher, RP; Gummow, W; & Lehane, J (1975) Equity: Doctrine and remediesSydney: Butterworths

Bibliography 181

‘Meeting advises on new Land Bill’ The Daily Times 9 March 2006Meszaros, G ‘Taking the lands into their hands: The Landless Workers’ Movement

and the Brazilian state’ (2000) 27 Journal of Law & Society 517Meszaros, G ‘Researching the landless movement in Brazil’ in McConville, M &

Chui, WH (eds) (2007) Research methods for law (Edinburgh: EdinburghUniversity Press

Meszaros, G ‘The MST and the rule of law in Brazil’ (2007) 1 Law, Social Justice &Global Development Journal available at http://www.go.warwick.ac.uk/elj/lgd/2007_1/meszaros (accessed 14 October 2011)

Mhone, G ‘The political economy of Malawi: An overview’ in G Mhone (ed)(1992) Malawi at crossroads: The postcolonial political economy Harare: SAPES Trust

Miraftab, F & Wills, S ‘Insurgency and spaces of active citizenship: The story ofWestern Cape anti-eviction campaign in South Africa’ (2005) 25 Journal ofPlanning Education and Research 200

Mkandawire, T (1999) ‘Agriculture, employment and poverty in Malawi’ ILO/SAMAT Policy Paper Number 9

Moore, DS (2005) Suffering for territory: Race, place and power in Zimbabwe Durham& London: Duke University Press

Mostert, H & Fitzpatrick, P ‘Law against law: Indigenous rights and theRichtersveld cases’ (2004) 2 Law, Social Justice & Global Development Journalavailable at http://www.go.warwick.ac.uk/elj/lgd/2004_2/mostertfitzpatrick(accessed 25 January 2010)

Moto, F ‘Domesticating the definition of democracy’ (1998) 2 Bwalo: A Forum forSocial Development 24

Moyo, S ‘African land questions, the state and agrarian transition: Contradictionsof neoliberal land reforms’ (2004) (on file with the author)

Moyo, S (2000) Land reform under structural adjustment in Zimbabwe: Land use changesin Mashonaland provinces Uppsala: Nordiska Afrikainstitutet

Moyo, S ‘Land in the political economy of African development: Alternativestrategies for reform’ (2007) XXXII Africa Development 1

Moyo, S; Jha, P; & Yeros, P ‘The classical agrarian question: Myth, reality andrelevance today’ (2013) 2 Agrarian South: Journal of Political Economy 93

Moyo, S & Matondi, P ‘The politics of land reform in Zimbabwe’ in Baregu, M &Landsberg, C (eds) (2003) From Cape to Congo: Southern Africa’s evolving securitychallenges Boulder & London: Lynne Reiner Publishers

Moyo, S & Yeros, P ‘Land occupations and land reform in Zimbabwe: Towardsthe National Democratic Revolution’ in Moyo, S & Yeros, P (eds) (2005)Reclaiming the land: The resurgence of rural movements in Africa, Asia and LatinAmerica (London; New York: Zed Books

Moyo, S & Yeros, P ‘The resurgence of rural movements under neoliberalism’ inMoyo, S & Yeros, P (eds) (2005) Reclaiming the land: The resurgence of ruralmovements in Africa, Asia and Latin America (London; New York: Zed Books

Msisha, M (1999) ‘Land law in Malawi’ in Government of Malawi The final reportof the Presidential Commission of Inquiry on Land Policy Reform, Volume III Zomba:Government Printer

Mudimbe, VY (1988) The invention of Africa: Gnosis, philosophy and the order ofknowledge London: James Currey

Munzer, SR ‘Property as social relations’ in Munzer, SR (ed) (2001) New essays inthe legal and political theory of property Cambridge: Cambridge University Press

182 Bibliography

Munzer, SR ‘The commons and the anticommons in the law and theory ofproperty’ in Golding, MP & Edmundson, WA (eds) (2005) The Blackwell guide tothe philosophy of law and legal theory Oxford: Blackwell Publishing

Muriaas, R ‘Local perspectives on the “neutrality” of traditional authorities inMalawi, South Africa and Uganda’ (2009) 47 Commonwealth & ComparativePolitics 28

Murray, T (2003) Blending qualitative and quantitative research methods in theses anddissertations London; New Delhi; Thousand Oaks, California: Sage Publications

Nankumba, J ‘Customary land tenure and rural development: The case ofLilongwe ADD’ (1986) 13 University of Malawi Journal of Social Science 57

Nankumba, J (1989) A Case Study of Tenancy Arrangements on Private Burley TobaccoEstates in Malawi Winrock Publications

National Statistical Office (2002) Statistical yearbook, 2002 Zomba: NSONational Statistical Office (2002) Statistical yearbook, 2010 Zomba: NSONational Statistical Office Welfare monitoring survey, 2006 available at http://

www.nso.malawi.net/data_on_line/agriculture/wms_2007/WMS%202007%20REPORT.pdf

National Statistical Office (2008) Population and housing census: Preliminary reportZomba: NSO

Negri, A (1999) Insurgencies: Constituent power and the modern state Minneapolis:University of Minneapolis Press

Newton, K ‘Social trust, social capital, civil society and democracy’ (2001) 22International Political Science Review 201

Ng’ong’ola, C ‘Design and implementation of customary land reforms in centralMalawi’ (1982) 26 Journal of African Law 115

Ng’ong’ola, C Statutory control of land and the administration of agrarian policies inMalawi, unpublished PhD Thesis, University of London, 1983

Ng’ong’ola, C ‘The state, settlers, and indigenes in the evolution of land law andpolicy in colonial Malawi’ (1990) 23 The International Journal of African HistoricalStudies 27

Ng’ong’ola, C ‘The post-colonial era in relation to land expropriation laws inBotswana, Malawi, Zambia and Zimbabwe’ (1992) 41 International andComparative Law Quarterly 117

Ngugi, J ‘Policing neo-liberal reforms: The rule of law as an enabling and restrictivediscourse’ (2005) 26 University of Pennsylvania Journal of International EconomicLaw 513

Ngugi, J ‘The World Bank and the ideology of reform and development ininternational economic development’ (2006) 14 Cardozo Journal of Internationaland Comparative Law 313

North, D (1990) Institutions, institutional change and economic performance Cambridge:Cambridge University Press

Nozick, R (1974) Anarchy, state and utopia New York: Basic BooksNtsebeza, L ‘Land redistribution in South Africa: The property clause revisited’ in

Ntsebeza, L & Hall, R (eds) (2007) The land question in South Africa: The challengeof transformation and redistribution Cape Town: HSRC Press

Ntsebeza, L & Hall, R ‘Introduction’ in Ntsebeza, L & Hall, R (eds) (2007) The landquestion in South Africa: The challenge of transformation and redistribution CapeTown: HSRC Press

Nyamnjoh, F ‘Chieftaincy and the negotiation of might and right in Botswanademocracy’ (2003) 21 Journal of Contemporary African Studies 233

Bibliography 183

Nyamu-Musembi, C ‘Breathing life into dead theories about property rights: DeSoto and land relations in rural Africa’ International Development StudiesWorking Paper Number 272, Brighton, International Development Studies,2006

Nzunda, MS & Ross, K (eds) (1995) Church, law and political transition in Malawi,1992-1994 Zomba: Kachere Series

O’Leary, T (2002) Foucault: The art of ethics London: Continuum Okafor, OC ‘Poverty, agency and resistance in the future of international law: An

African perspective’ (2006) 27 Third World Quarterly 799 Okoth-Ogendo, HWO ‘Some issues of theory in the study of tenure relations in

African agriculture’ (1989) 59 Africa: Journal of the International African Institute 6‘One million hectares for green belt’ The Daily Times 31 July 2009Onions, CT (1966) The Oxford dictionary of English etymology Oxford: Clarendon

PressOrr, B; Eiswerth, B; Finan, T; & Malembo, L (1998) Public land utilization study:

Final report Tucson and Zomba: University of Arizona and Forestry ResearchInstitute of Malawi

Pachai, B (1973) Malawi: The history of the nation London: Longman Pachai, B (1978) Land and politics in Malawi, 1875-1975 Kingston, Ontario:

Limestone Press Palermo, G ‘Misconceptions of power: From Alchian and Demsetz to Bowles and

Gintis’ (2007) 92 Capital & Class 147Paliwala, A ‘Privatisation in developing countries: The governance issue’ (2000) 1

Law, Social Justice & Global Development Journal available at http://elj.warwick.ac.uk/global/issue/2000-1/paliwala.html (30 January 2010)

Paliwala, A ‘Irresolutions of modernity, law, nation and empire: A reading ofFitzpatrick’s Modernism and the grounds of law in conjunction with Hardt andNegri’s Empire’ (2003) 1 Law, Social Justice & Global Development Journal availableat http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2003_1/paliwala/(accessed 12 November 2011)

Paliwala, A ‘WTO and the banana farmers: Commodity chains and theglobalisation of economic regulation’ Paper presented to the Law andAnthropology Workshop, at Birkbeck College, London, 2004

Palmer, R ‘Land policy in Africa: Lessons from recent policy and implementationprocesses’ in Toulmin, C & Quan, J (eds) (2000) Evolving land rights, policy andtenure in Africa London: DFID, 2000

Parfitt, T ‘Are the third world poor homines sacri? Biopolitics, sovereignty anddevelopment’ (2009) 34 Alternatives 41

Penner, JE ‘The “bundle of rights” picture of property’ (1996) 43 UCLA Law Review711

Penner, JE (1997) The idea of property in law Oxford: Oxford University PressPeters, PE ‘Inequality and social conflict over the land in Africa’ (2004) 4 Journal

of Agrarian Change 269Peters, PE ‘Challenges in land tenure and land reform in Africa: Anthropological

contributions’ (2009) 37 World Development 1317 Peters, PE & Kambewa, D ‘Whose security? Deepening social conflict over

‘customary’ land in the shadow of land tenure reform in Malawi (2007) 45Journal of Modern African Studies 447

Phiri, KM & Ross, K (eds) (1998) Democratization in Malawi: A stocktaking Blantyre:CLAIM

184 Bibliography

Picciotto, S ‘Networks in international economic integration: Fragmented statesand the dilemmas of neo-liberalism’ (1996-1997) 17 Northwestern Journal ofInternational Law and Business 1014

Picciotto, S ‘Liberalization and democratization: The form and the hearth in theera of cosmopolitan post-industrial capitalism’ (2000) 63 Law and ContemporaryProblems 157

Picciotto, S ‘The WTO’s appellate body: Legal formalism as a legitimation ofglobal governance’ (2005) 18 Governance 477

Pitcher, A; Moran, MH; & Johnston, M ‘Rethinking patrimonialism andneopatrimonialism in Africa’ (2009) 52 Africa Security Review 125

Platteau, JP ‘Does Africa need land reform?’ in Toulmin, C & Quan, J (eds) (2000)Evolving land rights, policy and tenure in Africa London: DFID

Potts, D ‘Rural mobility as a response to land shortages: The case of Malawi’(2006) 12 Population, Space and Place 291

Privatisation Malawi http://www.privatisationmalawi.org/index.php?option=com_content&task=blogcategory&id=31&Itemid=151&limit=5&limitstart=5(accessed 25 January 2010)

Procacci, G ‘Social economy and the government of poverty’ in Foucoult, M;Burchell, G; Gordon, C; & Miller, P (eds) (1991) The Foucault effect: Studies ingovernmentality Hemel Hempstead: Harvester Wheatsheaf

Prozorov, S ‘Three theses on governance and the political’ (2004) 7 Journal ofInternational Relations and Development 267

Radin, MJ ‘Property and personhood’ (1982) 34 Stanford Law Review 957Ranger, T ‘The invention of tradition in colonial Africa’ in Hobsbawm, E &

Ranger, T (eds) (1983) The invention of tradition Cambridge: CambridgeUniversity Press

Rawls, J (1971) Theory of justice Cambridge, Mass: Harvard University Press Read, M (1956) The Ngoni of Nyasaland London: Oxford University PressReich, C ‘The new property’ (1964) 73 Yale Law Journal 773 Rittich, K ‘The future of law and development: Second generation reforms and the

incorporation of the social’ in Trubek, D & Santos, A (eds) (2006) The new lawand economic development: A critical appraisal Cambridge: Cambridge UniversityPress

Roberts, S ‘Malawi Forfeiture Act 1966 – A surfeit of discretion’ (1966) 10 Journalof African Law 131

Roberts, S ‘Some notes on the “African customary law”’ (1984) 28 Journal of AfricanLaw 1

Roberts-Wray, K (1966) Commonwealth and colonial law London: Stevens & Co Rose, C ‘The “new” law and development movement in post-cold war era: A

Vietnam case study’ (1998) 32 Law and Society Review 93 Roy, RK; Denzau, AT; & Willett, TD et al ‘Introduction: Neo-liberalism as a

shared mental model’ in Roy, RK; Denzau, AT: & Willett, TD (eds) (2007)Neoliberalism: National and regional experiments with global ideas London and NewYork: Routledge

Sandel, M (1998) Liberalism and the limits of justice Cambridge: CambridgeUniversity Press

Santos, A ‘The World Bank’s uses of the “rule of law” promise in economicdevelopment’ in Trubek, D & Santos, A (eds) (2006) The new law and economicdevelopment: A critical appraisal Cambridge: Cambridge University Press, 2006

Sassen, S ‘The participation of states and citizens in global governance’ (2003) 10Indiana Journal of Global Legal Studies 5

Bibliography 185

Sax, JL ‘The public trust doctrine in natural resources law: Effective judicialintervention’ (1969-70) 68 Michigan Law Review 471

Schwarzmantel, J (2008) Ideology and politics London: SageScott, JC (1985) Weapons of the weak: Everyday forms of peasant resistance New Haven:

Yale University PressScott, JC (1990) Domination and the arts of resistance: Hidden transcripts New Haven

& London: Yale University PressSeidman, A & Seidman, RB ‘The political economy of the customary law in the

former British territories of Africa’ Law’ (1984) 28 Journal of African Law 44Selznick, P (1992) The moral commonwealth: Social theory and the promise of community

Berkeley: University of California PressSen, A (1999) Development as freedom Oxford: Oxford University Press Serra, N; Spiegel, S; & Stiglitz, JE ‘Introduction: From the Washington Consensus

Towards a New Global Governance’ in Serra, N & Stiglitz, JE (eds) (2008) TheWashington Consensus reconsidered: Towards a new global governance Oxford: OxfordUniversity Press

Shamir, R ‘The age of responsibilization: On market-embedded morality’ (2008) 37Economy & Society 1

Shams, H ‘Law in the context of “globalization”: A framework of analysis’ (2001)35 International Lawyer 1589

Shaw, M (1986) Title to territory in Africa: International legal issues Oxford: ClarendonPress

Shaw, M (2003) International law Cambridge: Cambridge University Press Shivji, I (1975) Class struggles in Tanzania Dar es Salaam: Tanzania Publishing

HouseShivji, I (1998) Not Yet Democracy: Reforming Land Tenure in Tanzania Dar es

Salaam: IIED and HAKIARDIShillington, K (1995) History of Africa New York: St Martin’s PressSilverman, D (2005) Doing qualitative research London: Sage PublicationsSkidelsky, R (2009) Keynes: The return of the master London: Allen LaneSklair, L (2002) Globalisation: Capitalism and its alternatives Oxford: BlackwellSnyder, F ‘Colonialism and legal form: The creation of “customary” law in

Senegal’ in Sumner, C (ed) (1981) Crime, Justice and Underdevelopment London:Heinemann

Snyder, F ‘Customary law and the economy’ (1984) 28 Journal of African Law 34Springer, S ‘Neoliberalism as discourse: Between Foucauldian political economy

and Marxian poststructuralism’ (2012) 9 Critical Discourse Studies 133Stambuli, K ‘Long-run food security implications of a top-down agricultural

strategy in Malawi’ Surrey Institute for Global Research, 2002 Steele, RJG; Bosworth, JL; Gossage, SJ; & Mataya, C (1997) Estate land utilization

study: The tea plantations of Malawi – The report of the tea estate surveys 1996 and 1997Lilongwe, Malawi

Stewart, F & Wang, M ‘Do PRSPs empower poor countries and disempower theWorld Bank, or is it the other way round?’ available from http://www.eurodad.org/uploadstore/cms/docs/WBevalMay03.pdf (accessed 24January 2015) (on file with author)

Stiglitz, J (2002) Globalization and its discontent New York & London: Penguin PressStroh, M ‘Qualitative interviewing’ in Burton, D (ed) (2000) Research training for

social scientists: A handbook for postgraduate researchers London: Sage Publications

186 Bibliography

Swynnerton, RWJ (1955) A plan to intensify the development of African Agriculture inKenya Government Printer

Tan, CC A new regulatory discipline: Poverty reduction strategy papers (PRSPs) in theframework of postcolonial international law and global governance, unpublished PhDThesis, University of Warwick, 2007

Tangri, RK ‘The rise of nationalism in Colonial Africa: The case of ColonialMalawi’ (1968) 10 Comparative Studies in Society and History 142

‘The other crisis’ Speech delivered by President James Wolfensohn at http://www.worldbank.org/html/extdr/am98/jdw-sp/am98-en.pdf (accessed 4 June2009)

Thomas, A (2006) Value and context: The nature of moral and political knowledgeOxford: Oxford University Press

Thomas, S ‘Economic development in Malawi since independence’ (1975) 2Journal of Southern African Studies 30

Toulmin, C & quan, J ‘Evolving land rights, tenure and policy in sub-SaharanAfrica’ in Toulmin, C & Quan, J (eds) (2000) Evolving land rights, policy and tenurein Africa London: DFID

Tribe, L (1988) American constitutional law Mineola, New York: Foundation Press Trubek, D ‘Law and development: Then and now’ Paper presented to the

American Society of International Law, Washington DC, 1996Trubek, D & Santos, A ‘Introduction: The third moment in law and development

theory and the emergence of a new critical practice’ in Trubek, D & Santos, A(eds) (2006) The new law and economic development: A critical appraisal Cambridge:Cambridge University Press

Tshuma, L Law, state and the agrarian question in Zimbabwe, unpublished PhDThesis, University of Warwick, 1995

Tushnet, M ‘An essay on rights’ (1984) 62 Texas Law Review 1363 Van den Bergh, JCJM ‘Abolishing GDP’ (2007) Tinbergen Institute Discussion

Paper, TI 2007–019/3 available at http://www.tinbergen.nl/discussionpapers/07019.pdf (accessed 22 October 2009)

Van den Brink, R; Glen, T; Binswanger, H; Bruce, J & Byamugisha, F (2006)Consensus, confusion, and controversy: Selected land reform issues in sub-Saharan AfricaWashington DC: World Bank

Vandevelde, K ‘The new property of the nineteenth century: The development ofthe modern concept of property’ (1980) 29 Buffalo Law Review 325

Von Benda-Beckmann, F ‘Law out of context: A comment on the creation oftraditional law discussion’ (1984) 28 Journal of African Law 28

Von Braun, J & Meinsen-Dick, R ‘“Land Grabbing” by foreign investors indeveloping countries – Risks and opportunities’ IFPRI Policy Brief (2009)

Walker, C; Bohlin, A; Hall, R; & Kepe, T (eds) (2010) Land, memory, reconstruction,and justice: Perspectives on land claims in South Africa Ohio University Press

Watt, G (2008) Trusts and equity Oxford: Oxford University Press Whitehead, A & Tsikata, D ‘Policy discourses on women’s rights in sub-Saharan

Africa: The implications of the return of the customary’ (2003) 3 Journal ofAgrarian Change 67

Williams, DC ‘Reconsidering state and society in Africa: The institutionaldimension in land reform policies’ (1996) 28 Comparative Politics 207

Williams, PJ ‘Alchemical notes: Reconstructing ideals from deconstructed rights’(1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401

Williamson, J ‘What Washington means by policy reform’ November 1989, citedin Ngugi, J ‘Policing neo-liberal reforms: The rule of law as an enabling and

Bibliography 187

restrictive discourse’ (2005) 26 University of Pennsylvania Journal of InternationalEconomic Law 513

Williamson, J ‘A short history of the Washington Consensus’ in Serra, N &Stiglitz, JE (eds) (2008) The Washington Consensus reconsidered: Towards a newglobal governance Oxford: Oxford University Press

World Bank (1992) Governance and development Washington DC: World Bank World Bank (2003) Land policies for growth and poverty reduction Washington, DC:

World BankWorld Bank: Malawi http://web.worldbank.org/WBSITE/EXTERNAL/

COUNTRIES/AFRICAEXT/MALAWIEXTN/0,,contentMDK:22395961~menuPK:50003484~pagePK:2865066~piPK:2865079~theSitePK:355870,00.html (accessed 25 January 2010)

World Bank (2003) Malawi country economic memorandum: Policies for acceleratinggrowth Washington DC: World Bank

World Bank (2003) Towards country-led development: A multi-partner evaluation of thecomprehensive development framework report Washington DC: World Bank

World Bank (2010) Rising global interest in farmland: Can it yield sustainable andequitable benefits? Washington DC: World Bank

Wysong, E & Perrucci, R ‘Organizations, resources and class analysis: Thedistributional model and US class structure’ (2007) Critical Sociology 211

Zhao, Y ‘From commercialization to conglomeration: The transformation of theChinese press within the orbit of the party state’ (2000) 50 Journal ofCommunication 3

Cases

Alexkor Limited v the Richtersveld Communities 2004 (5) SA 460 (CC)Amodu Tijani v the Secretary, Southern Nigeria [1921] 2 AC 399Anachuna Nwakobi v Eugene Nzekwu [1964] 1 WLR 1019 PCAttorney General v the Malawi Congress Party, LJ Chimango and Dr HM Ntaba [1997] 2

Malawi Law Reports 181Chief JM Kodilinye v Anatogu, Philip Akunne [1955] 1 WLR 231 PCDorman v Rodgers (1982) 148 CLR 365Goldberg v Kelly (1970) 397 US 254Government of Malaysia v Selangor Pilots Association [1978] AC 337 Group Village Headman Kakopa, Tsakulani Jonisi Kasambwe v Lotani Njeresa Chilozi and

the Attorney General Civil Cause Number 40 of 2000 (Unreported)Harrow LBC v Qasi [2004] 1 AC 983In re Earnshaw-Wall (1894) 3 Ch.D 156In re Rhodesia [1919] AC 211James v United Kingdom (1986) 8 EHRR 123JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 1083Lithgow v United Kingdom (1986) 8 EHRR 329Mabo v Queensland (No 2) (1992) 175 Commonwealth Law Reports 1Mwawa v Jekemu Civil Cause Number 883 of 1993 (High Court of Malawi,

Principal Registry, Unreported)

188 Bibliography

Nchima Tea and Tung Estates v All Concerned Persons Civil Cause Number 338 of 1998(High Court of Malawi, Principal Registry, Unreported)

Nireaha Tamaki v Baker [1901] AC 561Nyali v Attorney General [1955] 1 QB 1O’Dwyer v Council of the European Union [1995] ECR II-2071Pennsylvania Coal Company v Mahon (1922) 260 US 393Republic v Flyton Jumbe, Simon Andaki Likoswe, Wyson Muhiye, Alfred Mpwitikizi and

Rosario Henderesoni In the Senior Resident Magistrate’s Court at Dalton Road,Limbe, Criminal Case Number 331 of 2003 (Unreported)

R v Chief Constable, ex parte International Trader’s Ferry Ltd [1998] QB 477R v Earle of Crewe ex parte Sekgome [1910] 2 KB 526Sobhuza II v Miller [1926] AC 518Sporrong & Lonnroth v Sweden (1983) 5 EHRR 35The Malawi Congress Party, LJ Chimango and Dr HM Ntaba v Attorney General and the

Speaker of the National Assembly [1996] Malawi Law Reports 244Tito & Others v Waddell & Others (No 2) [1977] 1 Ch 106Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621Wachauf v Federal Republic of Germany [1989] ECR 2609Wik v Queensland (1997) 187 Commonwealth Law Reports 1