14
transformation? Is the current leasehold system properly performing its role of clearly adjudicating,
recording, and guaranteeing rights, or instead is it causing unacceptable levels of disputes and
displacement of landholders under the customary system? Is tenure insecurity under either system
adversely limiting investment incentives and credit access?
Some weak evidence is provided on the performance of the various land tenure systems in the
remainder of this paper, but a gross underinvestment in research on land rights, their intra-household
distribution, agrarian structure, land markets, and land tenure security inhibits concrete conclusions.
It would seem a reasonable conclusion that the leasehold process discussed further in chapter 3 and
resettlement programs in chapter 5 have been important factors in bringing new entrants into
agriculture and new land into farming. Yet, data on leasehold numbers and CSO data on number of
farms are published only at a provincial level, which is far too aggregated to assess these issues in a
rigorous way. The process of land settlement or crop area expansion also has fundamental implications
for the sustainability of resource management, farm size, market access, and the environment; here,
too, the information is rather superficial and largely anecdotal.
V. Land tenure'
Zambia's legal system is based on common law imported from Britain (Chinene et al. 1993).
The Royal Charter executed on 29 October 1889 paved the way for the introduction of English law
in the country. Through the North-Western Rhodesian Order in Council of 1889 (for Barotseland) and
the North-Eastern Rhodesian Order in Council (outside Barotse territory), English law was made to
apply. A host of other legal regimes in Zambia make reference to English law, including the
Subordinate Courts Act Cap 45 of the Laws of Zambia (SECTION 14), and the High Court Act, chapter
50 of the Laws of Zambia (SECTION 13.9). However, the Application Act (chapter 4 of the Laws of
Zambia) is the most prominent integration of English law. According to this act, common law, the
doctrines of equity (c) statutes which were in force in England on the 17th day of August 1911, and
any later English statutes applied to Zambia, are made in force in Zambia. Chinene et al. (1993) note
there are doubts over which 1911 English statues apply, but these provisions and the decisions reached
in English courts elsewhere in the Commonwealth have considerably shaped Zambian law.
Despite the application of common law in Zambia, most Zambians still conduct their activities
in accordance with customary law. No single body of customs prevails across the country; in fact,
local variations are common. The term customary law encompasses a host of different prevailing tribal
customs. Although customary law has been superseded by legislation in many areas, it continues to
play a considerable role in the development of land tenure concepts and structure in tribal areas.
However, land legislation enacted in Zambia by the colonial government and the post-independence
parliament has had the single most important influence on land law and land rights in the country.
Common law, equity, and statute law mainly apply in State Lands, whereas customary law
applies to Reserve and Trust Lands except where land in these categories has been converted to State
Land. In 1928, the Northern Rhodesia (crown lands and Native Reserves) Order in Council was
promulgated, creating two categories of land: Crown Land and Native Reserves. Generally, Crown
7
Parts of this section draw heavily on chapter 2, "Review of Land Tenure under Legal and Customary Systems," in Chinene
et al. (1993).