landscape conservation and land tenure in zambia

AWF Working Papers

September 2005

LLLLLandscape Conservation and Land Tenure in Zambia:Community Trusts in the Kazungula Heartland

Simon Metcalfe

©D

audi

Sum

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©Nyikavanhu Munodawafa

©Nyikavanhu Munodawafa

The African Wildlife Foundation,

together with the people of Africa,

works to ensure the wildlife and

wild lands of Africa will

endure forever.

www.awf.org

Arusha Center (Tanzania)African Wildlife FoundationPlot 27, Old Moshi RoadP.O. Box 2658ARUSHA, TANZANIATel: +255 27 2509616Fax: +255 27 2544453email: [email protected]

Nairobi Center (Kenya)African Wildlife FoundationBritak CentreMara Ragati RoadP.O. Box 48177, 00100NAIROBI, KENYATel: +254 20 2710367Fax: +254 20 2710372email: [email protected]

Kampala Center (Uganda)African Wildlife FoundationRuth Towers15A Clement Hill RoadP.O. Box 28217KAMPALA, UGANDATel: +256 41 344 510Fax: +256 41 235 824email: [email protected]

Washington D.C. Center (U.S.A.)African Wildlife Foundation1400 Sixteenth Street, N.W.Suite 120WASHINGTON, D.C. 20036, U.S.A.Tel: +1 202 939 3333Fax: +1 202 939 3332email: [email protected]

White River Center (South Africa)African Wildlife FoundationP.O. Box 2977WHITE RIVER 1240,SOUTH AFRICATel: +27 13 751 2483Fax: +27 13 751 3258email: [email protected]

Zambezi Center (Zambia)African Wildlife Foundation50 Independence AvenueP.O. Box 50844RidgewayLUSAKA, ZAMBIATel: + 260 1 257074Fax: + 260 1 257098email: [email protected]

About this paper series

The AWF Working Paper Series has been designed to disseminate to partners and the conservation community,aspects of AWF current work from its flagship African Heartlands Program. This series aims to share currentwork in order not only to share work experiences but also to provoke discussions on whats working or not andhow best conservation action can be undertaken to ensure that Africas wildlife and wildlands are conservedforever.

About the Author: Simon Metcalfe is the Technical Director for Southern Africa and is based in Harare ZimbabweThe author acknowledges the work done by AWF staff without whom there would be no paper to write: N.Munodawafa; P. Jere; & N. Samu and Daudi Sumba.

This paper was edited by an editorial team consisting of Dr. Helen Gichohi, Dr. Philip Muruthi, Prof. JamesKiyiapi, Dr. Patrick Bergin, Joanna Elliott and Daudi Sumba. Additional editorial support was provided byKeith Sones.

Copyright: This publication is copyrighted to AWF. It may be produced in whole or part and in any form foreducation and non-profit purposes without any special permission from the copyright holder provided that thesource is appropriately acknowledged. This publication should not be used for resale or commecial purposeswithout prior written permission of AWF. The views expressed in this publication are the authors and they donot necessarily reflect those of AWF or DGIS - the sponsor of this publication.

For more information, contact the coordinating editor, Daudi Sumba at - email [email protected] photo credit: AWF (clockwise: Zambezi River, Zambian village in Trust areas and Chief Mukuni)

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Table of Contents

Preamble

1. African Wildlife Foundation Heartlands Strategy

1.1 Kazungula Heartland

2 Background to Zambian Communities and AWF’s Strategy

3. Background to Customary Land Tenure in Zambia

3.1 Zambian Tenure and Land Law

3.2 Management of Access to Customary Land and Natural Resources in Zambia

3.3 Does the Land Law Enable Conservation and Development

4. Status of Community Land Trusts Development in Five Zambian Chiefdoms

4.1 Sekute Community Development Trust

4.2 Mukuni, Musokotwani, Simwatachela and Inyambo Trusts

4.3 Community Trusts and Private Sector

5. Way Forward: Linking Practice to Policy, Legislation and Institutions

References

AWF Working PapersSeptember 2005

Landscape Conservation and Land Tenure in Zambia: Community Trusts in Kazungula Heartland

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Preamble

The management of communal land for sustainableconservation and development in southern Zambiaposes a major challenge. The communal areas have greatpotential for conservation because they have extensivewildlife habitat with low populations that provide anopportunity if secured, for opening connectivity withwildlife rich areas in Zimbabwe, Botswana and Namibia.Apart from the conservation opportunity the presenceof wildlife, together with other abundant naturalresources in the area, also provides potential forenterprise development that could improve locallivelihoods. However, both the conservation anddevelopment potential is frustrated by a dualistic landtenure and administration system that distortsincentives for dynamic community and private sectorpartnerships. Most of the Zambian land in the UpperZambezi transboundary area is under customary tenure.Customary authorities can provide private access tocommunity land but should the investor desire formallegal protection then the customary right of access canbe processed to leasehold status through theCommissioner of Lands. Leasehold land is alienatedfrom customary to state tenure and the managementbecome divided between customary and statutoryauthorities with consequent inefficiencies. Sites on theZambezi River are becoming tourism investment“hotspots” and if access is not well negotiated risk beingfinancially inefficient, socially inequitable and a threatto landscape connectivity. Furthermore, accountabilitybetween Chief and community is often subjective andsituational with examples of enlightened action and rentseeking behaviour. Unless the challenges encompassedby dualistic tenure and participatory common propertymanagement are met investment may be negative forlivelihood improvement.

Fundamentally, the rich land and resourceendowments of Zambian communities are not matchedby clarity on who is entitled to manage and benefit fromthem. Therefore land reform, which normally takes along time, is required to correct these disincentives. Inthe interim, the African Wildlife Foundation has beenworking with communities, organised through theirtraditional chiefdoms, to pilot community trusts. Thetrusts are a mechanism and model that can securecommunity land and natural resource rights, democratiseland management and provide a conducive environment

for communities to engage in and benefit frominvestment. This paper documents AWF’s experienceso far with community land trusts in five chiefdoms ofsouthern Zambia.

1. African Wildlife Foundation’s HeartlandStrategy

AWF, is an international conservation organizationthat works with the people of Africa to ensure thatwildlife and wild lands endure forever. It is committedto applied conservation in Africa and its programmepresently focuses on eight African landscapes (termedAfrican Heartlands), selected for their critical wildlifeconservation importance and value to the people whodepend on their resources. An AWF Heartland definesan area where it promotes landscape level conservationand supports integrated land management forbiodiversity conservation and livelihood development.A Heartland is a mosaic of habitats and movement needsof key wildlife species and also a tenurial mosaic of state,private and community-managed lands (Metcalfe 1995).Habitat corridors and other linkages require land andideally, a secure long-term arrangement with theresponsible land managers is needed to ensure that thereis an ongoing commitment to the objectives of thelinkage (Bennett 2003). In the knowledge that landscapeviability is an outcome of interacting ecological andhuman management systems AWF helps to secureprotected areas as ecological anchors and promotessustainable management in surrounding areas byfostering socio-economic activities that help to securecore habitat and where possible expand it. AWF workswith partners - specialists, governments, private sectorand communities - to develop shared management plansand identify priority interventions to deliver concreteconservation and economic impact at the landscape level(AWF 2001; 2003; 2004). Strategically, conservationthreats to landscape are reduced through improvedknowledge, enabling policy, collaborative governanceand positive management incentives.

1.1 Kazungula Heartland (see map)

The Kazungula Heartland covers a 90,000-km2

transboundary area with important terrestrial and freshwater ecosystems and is a prime African wildlife andtourism area. Kazungula includes several protected areas,holds the highest number of African elephants and ishome to the Victoria Falls, the icon of the Zambezi



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River, which is a major drainage system and conservationtarget. AWF has been involved in Kazungula since 2000and has established an overall strategy and identified acore set of priority interventions, achievable within itsmanageable interest and likely to leverage maximumpossible conservation impact at the landscape level. Onepriority is to establish a wildlife corridor betweenZimbabwe and Botswana where substantial wildlifepopulations in Chobe and Zambezi National Parks exist,and across the Zambezi River with Zambia and the KafueNational Park. Sekute community land is a vitalstepping-stone between Chobe, Zambezi and Caprivito the south and the 5,9 million hectares of the KafueNational Park and its surrounding Game ManagementAreas to the north. Zimbabwe’s Zambezi National Parkconnects directly with Sekute while the corridor fromBotswana’s Chobe National Park passes through Capriviin Namibia. Namibian conservation agencies have beenworking for over decade promoting communityconservation within a transboundary landscape context.AWF’s community conservation work in the Zambian

section of the corridor is also designed to complementthat effort.

Habitat in the Zambia community lands is largelyintact but fragmented and disturbed in critical riverineareas by the land use practices of communities. Tobecome an ecological reality the corridor has to beembedded within a socio-economic, political andinstitutional system. The conservation goal of theproposed northern Botswana-Southern Zambia corridoris to restore, maintain and protect wildlife movementand dispersal areas around and between protected areasand to secure habitat and species diversity. Working withlocal people, local authorities (customary and statutory)and wildlife agencies AWF maps existing wildlifepopulations and movements as well as human/wildlifeconflict zones to establish corridor viability. Havingestablished latent potential for the corridor AWF isaddressing the socio-economic context to design astrategy to secure it. The ecological objective cannot beimposed on rural communities living on their own land

but needs to benegotiated, adopted,supported andimplemented by them.To achieve that AWF isworking to establishthe enabling conditionsto realise the corridor.The strategy needs asupportive policyframework, strong landand resourcem a n a g e m e n tinstitutions andefficient and equitablenatural resourceenterprises thatimprove locallivelihoods (Metcalfe1996a).

AWF’s communityconservation andenterprise developmentinitiative in theZambian section of theKazungula Heartlandfocuses on thep a r t i c i p a t o r yestablishment of land

Map of Kazungula Heartland



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and natural resource management institutions. Theinstitutions exist to help the communities manage theirresources in such a way that they help deliver viableenterprises that serve both landscape conservation andrural development outcomes.

2. Background to Zambian communities andAWF’s strategy

Most of Zambia lies on high plateau 3,500 – 4,500feet above sea level that is broken by the Zambezi Rivervalley and its Kafue and Luangwa River tributaries. TheZambian section of the Kazungula Heartland is situatedin the Zambezi valley area and lays in Zambia’s agro-ecological Zone 1, which has the harshest climaticconditions, rainfall less than 800mm. and a short crop-growing season of 80-120 days and carries a medium tohigh risk of drought. Four of the chiefdoms (Sekute,Mukuni, Musokotwane and Simwatachela) are inSouthern Province, which has an average populationdensity of below 15 people km2. Inyambo District liesin Western Province, which has an average populationdensity of only 6 people per km2. A massive 53% of allunder five aged children are nutritionally stunted on anage, weight and height basis, 73% of the totalpopulation is considered poor and 56% extremely poor(ECZ 2001). With a total population of 778,740 personsin Southern province under the age of 20 thoseorphaned of one parent because of HIV/AIDS amountto 9% (135,086). 1 Some 42% of all households inSouthern Province earn less than half a US dollar a dayof which only 27% is derived by on-farm income, 25%by non-farming and 28% from wage labour. Householdsproduce only 26% of food consumed and cope withshortages by reducing daily meals and other householditems or substituting normal meals with natural fruits.

Community lands in Zambia are a key part ofKazungula with good wildlife habitat and well endowedwith natural resources but with low wildlifepopulations. Since 2001 AWF has been workingintensively with five Zambian chiefdoms, a populationof some 100,000 in an area of about 1 million hectares.The area stretches all along the Zimbabwean andNamibian border and radiates north from the ZambeziRiver. Despite opportunities for communityconservation and enterprise development thecommunities lack support systems to exploit existing

opportunities. For example, during its initialinvolvement AWF facilitated a group of Zambiancommunity leaders to visit community conservationschemes in Botswana, Namibia and Zimbabwe to helpthem design plans for themselves. The leaders foundthat although they lacked support to establish wildlifebased enterprise they had real opportunities as Zambia’sliberalization and tourism drive has resulted in anincreased investment interest around Livingstone,including their areas, especially those on or near theZambezi River.

In Zambia, traditional rulers are land authoritiesand “gateways” to investment. The Chief’s approval andrecommendation on “external” investment is the criticalfirst step in securing a lease on customary land.Unfortunately, there are several inefficiencies in theprocess that mean that a tourism investment may serveneither a positive conservation nor a communitylivelihood outcome. Unless the land conversion processand natural resource laws are improved and stronginstitutions developed it is probable that as things standprivate sector investment may result in moreimpoverished communities and unsustainable landscapemanagement. Communities risk losing strategic land andresources because of weak rights, poor collective actionand failure to capture income from their natural assets.AWF has consulted extensively with the traditionalrulers and with their support initiated a process ofconsultation with their sub-authorities and subjectswith the view to establishing registered (incorporated)community trusts based on the chiefdom area andauthority. The trusts have been registered, haveconstitutions, and with AWF’s help are getting readyfor the business of wildlife driven development. Thetrusts could make a radical step in communal landreform in Zambia and become a new model. Tounderstand the opportunities, challenges and threats itis necessary to understand the Zambian land reform andsocio-economic context.

3. Background to Customary Land Tenure in Zambia

African customary tenure was historically thedominant mode of rights and obligation to land andits resources until colonialism provided a dramatic shockand transformed and alienated the shared “commons”into systems of “native trust”, state and private tenure.These three over-arching systems have persisted underAfrican nationalist governance with the general tendencytoward the erosion and privatisation of customarytenure (Platteau 1992). The customary “commons”

1

Of the 135,086 orphans 62% have no father, 22% no mother and 16% noparents 16%).



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means land and associated resources being availableexclusively to specific communities, lineages or familiesoperating as corporate identities. The essential elementof customary tenure is that resources are available intime and space and across generations with “ownership”being vested in the members of the group who qualifyon the basis of socially defined membership criteriareinforced by reciprocity (equity on a give and take basis)by and to each member of the community, organizedin a social hierarchy starting with the household andspreading out spatially and up organizationally througha lineage group, clan, chiefdom, and sometimeskingdom (Okoth-Ogendo 2000).

All African countries since colonialism manifestsome element of “dualistic” tenure, a division of landclassification and allocation between communal andprivate tenure. Classically, the areas with best croppingpotential were privatised and allocated to colonial elites(Quan 2000). Colonial southern Africa favoured theprivate settler farmer and the countries with mostsettlement witnessed the greatest alienation ofcustomary lands. In South Africa communitiesremained with only 13% of the land area (Hall 2004).In both Zimbabwe and Namibia communities were leftwith some 45% of the less productive land area (Moyana1984; Werner 2001; Lahiff 2003). Botswana andZambia endured far less land alienation and localcommunities retained more land under customarytenure, albeit under colonial and later state regulatorycontrol (Cassidy 2000). In Zambia traditionalauthorities as rulers and traditional systems as modesof social organization are real, recognized and verysignificant local institutions. Whilst typically a socialisticpolicy might favour community equity, the marketliberalization approach favours private sector efficiency.But, the relationship between the two value systemsand the relationship between community and privatetenure is guided by the critical role of the state’s landand agrarian reform policy.

3.1 Zambian Tenure and Land Law

It is officially stated that Zambia covers a totallandmass of 75 million hectares of which State Landcomprises only 4.5 million hectares (6%) andCustomary Land the rest (94%) (Adams 2003). In 1924control over all land in present-day Zambia (with theexception of Barotseland, now Western Zambia, whichhad its own treaty with Britain) was transferred fromthe British South Africa Company to the Governor ofNorthern Rhodesia. Two categories of land were created:

Crown Land and Reserves, the former for Europeanfarmers and the latter set aside for Indigenous People.The Crown Land followed the railway line fromLivingstone to Lusaka and up to the Copperbelt andincluded good arable land on the central plateau. Thenumber of white farmers expanded after the SecondWorld War to a peak near 1500 (Adams 2003). TheAfrican Government led by Dr. Kenneth Kaundabecame a one-party state in 1973 with a politicalobjective of establishing a classless society and one inwhich land would not be a commodity. Only small-scale property was permitted, all freehold land waschanged to leasehold and the large-scale white farmsdisintegrated. Any transaction in land without priorconsent from the President was prohibited (Adams2003). The laws governing the granting of customaryland in practical terms continued to be interpreted inthe light of the Orders of the colonial government:traditional authorities were recognized and that authoritywas exercised in the person of the traditional ruler(Hansungule 2001).

In 1985 the Ministry of Lands issued AdministrativeCircular No. 1, 1985 which set out the procedure bywhich customary land could be alienated to a privateperson or body. First, was the approval of chief,followed by a resolution of the District Council, andfinally approval by the Commissioner of Lands for theconversion of tenure from customary to leasehold. The1995 Land Act codified these procedures in statutoryform and they largely hold today. One provision of thecircular was that no more than 250 hectares of landcould be converted at any one time although this is notin the present Land Law and both Chiefs andGovernment have recently approved more (Hansungule2001). The initial approval often occurs without capacity(e.g. surveyors, technical advisors etc.), is arbitrary andwithout clarity on issues (e.g. extent of land approved)(ibid.). The traditional rulers or chiefs formalinvolvement actually ends at “approving” the conversion.Once the chief has approved the matter ends there, ashe/she has no power to sign the conveyance as one ofthe parties to the contract. The lease contract is betweenCommissioner of Lands, as Lessor, (on behalf of thePresident) and the Lessee on the other. The Chiefs’initial recommendation must be followed by theDistrict Council’s collective resolution to issuance andtherefore can be an important mechanism to check aChief’s use of power. The Land Commission can checkboth chief and council. Alternatively, the opportunitiesfor rent seeking at each stage also exist (ZLA, 2004).



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In 1991 the United National Independence Party’s(UNIP) was challenged by the Movement for Multi-PartyDemocracy (MMD) whose democratic pluralism andneo-liberalism was apparent when its manifesto stated,‘the MMD shall institutionalise a modern, coherent, simplifiedand relevant land law code intended to ensure the fundamentalright to private property and ownership of land …’ and wenton to say it aimed to prepare legislation that wouldrestore the confidence of investors in land and would‘attach economic value to undeveloped land, encourage privatereal estate agency business, promote the regular issuance of titledeeds to productive land owners in both rural and urban areas…’(MMD, 1991, p7).

The Land Policy Conference of 1993 proposed thereshould be two classes of land - state and customary -and that the role of chiefs in policy formation andallocation of land in customary areas should berecognised. On state land it was recommended thatmarket forces would determine land prices while theland market in customary areas should be left to evolveaccording to local conditions. The Lands Act no. 27 of1995 was passed after heated debate that included avery vigorous defence of customary tenure and theposition of the chiefs (Adams 2003). The 1995 Actcontinues to recognise customary tenure, although anyperson who holds land under customary tenure mayconvert the holding to a lease (state land), not exceeding99 years. To foster cooperation from traditional rulersin the conversion of customary rights to leaseholdrights, the Land Act 1995 states that the President ‘shallnot alienate any land situated in a district or area where landis held under customary tenure without taking into considerationthe local customary law on land tenure… (and) without consultingthe chief and the local authority in the area in which the landto be alienated is situated...’ (GRZ, 1995, p.271).

The Act of 1995 established a Lands Tribunal whosejurisdiction is to settle disputes relating to land mattersincluding matters of compensation. The Act permitsthe President to alienate land to citizens, permanentresidents and non-Zambians who are investors. The Actis only eleven pages long and certain regulations such asthe important Circular No. 1, 1985, ‘Procedure on LandAlienation’ is still in effect. Although the Act is regardedas well drafted it still awaits the ‘coherent, simplifiedand relevant land law code’ promised in the MMDmanifesto of 1991 (MMD 1991). In 2002 theGovernment of Zambia, through Ministry of Lands,announced it was reviewing its land policy and appealedto the public for submissions with the intent to reviewthe Lands Act of 1995 after finalising the policy. Many

issues were brought forward including themarginalisation of the poor in the land policyformulation process, lack of community participationin the land alienation process, lack of information fromthe Government, women’s tenure insecurity, inaccessiblesurveyors and dispute resolution mechanisms, and the99-year lease period. In addition, the issue of corruptionin land administration, the need to recognise‘traditional title deeds’, the alienation of land to nonZambians, and the privatisation of communal areas frommajor rivers that should be owned and controlled bythe rural people. The Draft Land Policy is still waitingto be presented to the Zambian cabinet.

Not all access granted to community land andnatural resources necessarily ends up as leasehold landbecause the private investor may be satisfied with userights alone. The Chief has the legal right to allocatethe use of land for specific purposes to whomsoever,after consultations with tribal representatives. This maybe done without ratification by the District Council.An investor may only need a few hectares for a lodgebut desire a vast area with exclusive transverse rights fortourist clients. The land lease may be used where aninvestor wishes to protect a capital investment but therest of the land may remain customary with an exclusiveeasement or traverse right over it for particular uses andat particular times of the year. Overtime the rights ofaccess to customary land could become quite complexin terms of leases and use rights. Disputes over customaryaccess would be settled under customary law andstatutory law used for leasehold disputes It is unclearhow willing the Zambian state would be to sue the highlyrespected chiefs.

3.2 Management of Access to Customary Landand Natural Resources in Zambia

Max Gluckman (1941; 1943) explained that chiefsdo not allot the land directly to their subjects but allotit to sub-chiefs who in turn allot it to village headmen.At the village level, the headmen allotted land to headsof sub-sections or heads of households and theydistributed it to their dependents. Interests in land wereparcelled out to the end user for use and occupation.From a customary perspective kinship ensures tenurialaccess and migration to the urban areas could be seenas temporary ‘raiding for money’ as land was alwaysavailable on return. Ownership of customary land ishugely skewed against the women. Under customarytenure women’s’ land rights only exist within theirvirilocal marriages. When a woman marries she moves



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to her husbands village and only has use of her husbandsland at his pleasure. In event of divorce she will returnto her own relatives but if widowed she would normallybe allowed use of her husbands lands as long as shewishes but has no independent rights. Her rights to landexist only through her father, husband and later hersons. Her daughters as direct patrilineal descendents haveuse rights until their marriages. This situation hasbecome a huge gender concern in the context of HIV/AIDs, which leaves many women dependent on thecharity of their husband’s brothers. Some women haveadvocated that 30% of land be reserved for women and10% for people with physical disabilities under thepresent policy debate. Despite passing of the IntestateAct of 1989 the rights of widows and orphans are beingviolated in terms of land (Hasungule 2001; Min. ofLands 2005). 3

Although most African governments have to a greateror lesser extent disempowered traditional authoritiesZambia more than most any other has not. However, itcan be questioned whether it is the traditional ruler orthe institution of the chiefdom that is empowered, andwhether they are, or not, the same thing. This issue isplayed out in the land alienation process and is directlyrelevant to AWF’s work with chiefdom level land trusts.Although it is sometimes stated that 94% of Zambiafalls under customary tenure from that proportion mustbe deducted the 8% of the country designated asnational parks and further 8% designated as forestreserves (Min. of Lands 2005). From the remaining 76%must be deducted 2% for urban areas and 12% asunspecified areas (e.g. state farms, property, military,research stations etc.). Finally, from the remaining 64%the Game Management Areas (GMAs) that make up22% of Zambia’s land area must be considered (Machina2005). The GMAs, which act as extensive buffer zoneareas around all the major national parks, are customaryland but the Zambian Wildlife Authority (ZAWA) hasstatutory control over wildlife utilization. When wildlifepopulations permit ZAWA uses the GMAs as sporthunting reserves and they provide a significant part ofZAWA’s revenue. ZAWA markets the hunts, collects therevenue and shares it with the resident communitiesthrough the community resource boards established byits community conservation programme.

The GMAs are a form of co-management in whichZAWA controls hunting revenue but because the landis customary the traditional ruler can negotiate landaccess to non-consumptive wildlife tourism. In theLower Zambezi area AWF’s Zambezi Heartland isworking in GMAs (Chiawa and Rufunsa) and opencommunity areas (Siavonga). In Kazungula HeartlandAWF is working with five open community areas(chiefdoms) and not the neighbouring GMAs thatconnect them to Kafue National Park. The ChiawaGMA in Zambezi Heartland provides an example of landuse contestation where ZAWA controls huntingconcessions but Chieftainess Chiawa has concededseveral land leases to safari tourism operators all alongthe Zambezi River. ZAWA has not been able to establisha management plan in the Chiawa GMA that reconcilesconsumptive and non-consumptive wildlife use norgeneral land use in relation to cropping and livestocksubsistence use of the community. The sub-optimaltenurial structure in the GMAs exists because thecustomary land authority is not allied with ZAWA as awildlife authority nor the sectoral agencies that regulateaccess to forestry, fishery or non-forest timber products.

The Open Areas under customary tenure (outsideGMAs) comprise 42% of Zambia but within many ofthem are state forest reserves (% already deducted) andthe state still regulates commercial use of forest, wildlifeand fishery resources. One critique of the Land Lawconcerns the fact that strategic parts of Open Areas aretargeted for leasehold investment and becoming“hotspots” of alienation. One of the major tourism“hotspots” in community areas concerns the ZambeziRiver, which is prime real estate for the private sectorand a key conservation zone. Zambia’s liberalizationpolicy is being fuelled by displaced Zimbabweanagricultural and tourism interests and South Africa’srecent entry to the regional market..

3.3 Does the Land Law enable Conservation andDevelopment

Zambian communities in the Kazungula Heartlandhave land that private sector demand could develop.While the traditional ruler can agree to alienatecustomary land he/she is not in the final outcome thelessor and not in control of the lessee contract, itsperformance, or the full benefits that may flow from it.The Commissioner of Lands is the statutory landlord,controls the lease and receives direct benefits. Inrecognition of the potent “gatekeeper” role of the chiefand his ongoing presence, legitimacy and influence the

3 In Oliver Mtukudzi’s famous song ‘Neria’ and the feature film made to itsstory line he advises kindness and generosity by brothers to their late brother’swidow as the culture expects and not to exploit her material possessions orherself through abuse of the institution of ‘widow inheritance’.



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private investor will agree a “royalty” payment with thechief. Right from the start this dual and uncoordinatedrent collection creates inefficiencies and raises transactioncosts. In addition the traditional ruler can grant accessdirectly outside the statutory system and this is especiallyimportant in regard to the large proportion of wild land

Several inefficient outcomes result from this dualityin tenurial administration. Firstly, the chief may wellmake the deal directly and informally and thus thechiefdom is not a general beneficiary. The chief maynot be well advised and guided in the negotiation andmay be paid a symbolic rather than commercial rent.The investor, having to pay twice may become lessinterested in long-term social and ecologicalsustainability than in securing sufficient short tomedium term security to enable profit. The lease feepaid to the Commissioner of Lands is not strategicallyconnected to the District Council or Chief and thusdoes not ensure local appreciation of the land alienated.Finally, land once alienated from customary land toleasehold land cannot return to customary tenurialstatus so every time a private sector tourism oragricultural venture is established on customary landthat land is permanently alienated with no provisionfor the chief or community to ensure the lease ismanaged effectively or performs according to the leaseconditions.

Duality of authority compromises effectivemanagement unless resolved (Metcalfe 1994; 1996b;1999). If local authorities, traditional ruler or districtcouncil, and the Commissioner of Lands do not havean effective database or monitoring system to coordinatethe management of leases then alienation of customarylands does not guarantee a positive outcome. Whilstthe government’s liberalisation policies is supported bythe international donors, agencies such as traditionalauthorities, the Zambian Land Alliance (ZLA)4, andother civic parties including gender advocates refinementof the land reform policy. AWF’s work with thechiefdom level land trusts needs to be seen in this contextand is therefore not just about landscape conservationor improving local livelihoods but stands at the centreof the discourse on Zambian land and agrarian reform.

4 Status of Community Land Trust Development inthe Five Zambian Chiefdoms (see map)

AWF has facilitated the establishment ofcommunity development trusts with the vision ofimproving household livelihoods through thesustainable use of natural resources within a landscapeconservation approach. AWF is also promotingequitable distribution of benefits withoutdiscrimination. The trusts possess full juridicalpersonality and all members of the community areentitled to membership through village and areacommittees and chiefdom level boards. A key power ofthe boards is to enter and sign agreements, acquirepermits and enter into contracts. A central strategy ofthe trusts is to apply to convert strategic parcels ofcustomary land into leasehold. Once the trust holdsleasehold land it could then seek investors and partnersfor development as both customary and statutorylandlord. In this way customary land would be alienatedfrom the community back to itself in the form of thetrust, keep control of its land through a “head” leasearrangement and manage investments directly throughsub-leases. The trusts are designed to avoid landconverted from customary to leasehold tenure slippingout of the control of the community by using theadvantages of private title for its own purposes. Ingovernance terms a key element concerns the downwardaccountability of the Trust board to the Trust membersthrough an Annual General Meeting and through aGeneral Assembly held every three years (Ribot & Larson2005; Sekute Trust 2003).

The traditional leaders role in the trusts iscommunity mobilization, the oversight and regulationof elections, ensuring the trust constitutions are upheldand where necessary providing arbitration to resolveconflicts. The Chiefs’ land authority status exists in lawand cannot be given away so the trust will propose landsites to be converted for the traditional ruler to consider.In this way the Chiefs’ have allowed a democratic processto advise and guide them. Should they wish to ignorethe advice they risk undermining the very structure theyhave enabled. AWF has started by focusing at the arealevel of the Trusts, a tier of organisation below the Chief,corresponding with the traditional headmanship, whereit is helping map out and plan conservation anddevelopment activities. Working with the activeparticipation of the communities AWF is helping toidentify and prioritise natural resource and developmentopportunities and building them up into trust levelvisions, strategies and action plans. Communities are

4 The ZLA is a network of NGOs that advocate for fair and pro-poor landpolicies and laws. The ZLA began as a committee in 1997 to co-ordinateactivities of member NGOs to participate in and advocate the interests of itsmembers in the ongoing Zambian Government’s Land Reform Process initiatedin the early 1990’s.



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being actively engaged to ensure they drive the trustagendas with most progress so far in the Sekute andMukuni areas.

4.1 Sekute Community Development Trust

The Sekute Chiefdom covers and area of 250,000hectares and is home to an estimated 17,500 peopleliving in 2,900 households, 289 villages and 15 areas.AWF has focused on the Sekute area because of itswildlife potential, good tourism sites and 60 kilometresof Zambezi River frontage including several islands aswell as protected forests. Despite its resource richnessthe communities are poor and the dividend from theirnatural asset base is low. Conservation developmentpotential is threatened by poor returns from privatesector investment and loss of control through landalienation. The community depends on the traditionalauthorities for leadership and lack professional adviceor a coherent strategy for dealing with investmentinterests. AWF met with the traditional leaders to assess 5 AWF’s core team includes a community development and enterprise

development officers and a lawyer.

Zambia’s Land Policy and the Chiefs agreed thatallocating leases on customary land alienated it inperpetuity and further agreed that a community truststructure could hold a “head lease” and directly managesub-leases to private sector investment partners. Aninterim committee was elected at a general meeting withrepresentatives from all chiefdom areas. A draft trustconstitution was developed that grouped the chiefdom’s289 villages into fifteen trust areas based on theircustomary headmanships. The committee was taskedto create lower level structures and initiate the processof legitimating a constitution before registering it. Thecommittee, assisted by AWF, held area meetings andset up 15 area trust committees and proceeded toestablish village committees.5 Once that exercise wascomplete the trust held a general meeting to elect officebearers to the Board of Trustees. The Sekute Trust wasregistered with the Registrar of Societies in March 2003.AWF has assisted the trust to develop by-laws for the

Map of chiefdoms in Kazungula Heartland Zambia



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management of natural resources in the area and theKazungula District Council has since adopted these by-laws. One of the key benefits of the by-laws so far hasbeen to control charcoal trading in the area as well asestablishing a process for streamlining private sectorinvestments. The Sekute Trust has been co-opted intothe Kazungula District Development Committee, whichallows it to partner government agencies.

AWF successfully supported the trust to legallychallenge a private sector investor who had fraudulentlyclaimed ownership of a prime island on the ZambeziRiver belonging to the community. The community hassince repossessed the island, which is suitable fordevelopment of sport fishing camps, and also heldgeneral discussions with private sector operators in theSekute area. The private sector is attracted to a planthat provides a strong and professional communitypartner and one capable of building long-term effective

partnerships (Sekute 2003). AWF support to SekuteDevelopment Trust is helping halt illegal allocations ofland, democratise land rights, enforce natural resourcemanagement practices and effectively partner with theprivate sector in the area.

4.2 The Mukuni, Musokotwane, Simwatachela andInyambo Trusts

Chief Mukuni initiated a trust to organize thecommunities in the Makuni area to capture benefitsfrom booming tourism in the Livingstone/Victoria Fallsarea. The now well-established Mukuni CommunityDevelopment Trust has progressive leadership and usedAWF assistance to develop twelve lower level areaboards. The trust is registered, has received traininginputs, been on “look and learn” tours to Namibia andBotswana and helped facilitate the development of theSekute Development Trust. To date the trust hasnegotiated contracts with eleven local investors andraised some US$.2,500 monthly revenue. The contractsentered into by the trust involve percentage touristtakings for use of facilities built within the chiefdom.The trust intends to expand its revenue base, negotiatemore partnerships and increase benefits. AWF hasassisted the trust in proposal development andnegotiations for a partnership with Sun Internationalfor an up-market lodge. This is still under considerationand funds are being sought to raise the communityequity. There are several potential projects needingappraisal and packaging into fundable developmentproposals. One of the most visionary plans concernsthe development of a 100,000-hectare Bweengaconservancy, a vast wilderness area below the VictoriaFalls that could provide a birding and wildernessexperience. This land could complement the 66 km2

Mosi-oa-Tunya National Park by providing more landfor wildlife dispersal. The trust needs strengthening intrust governance, proposal development, negotiating,business management and marketing. Consolidation ofthe lower level structures is an important prerequisitefor the smooth functioning of the trust.

Chief Musokotwane’s has supported theestablishment of the Siluwe trust. The chiefdomprovides an important habitat link between Kafue andthe Zambezi wildlife transboundary area. The area,situated north of Livingstone, has an eastern boundarywith Mukuni and a southwest connection with Sekute.The community, with a population of 50,000 living in21 administrative areas registered their trust in July 2003and its interim committee is spearheading the internal

Figure 1: The Sekute Community Development Trust:linking traditional and democratic systems

Community developmenttrust board

area trust committees

village trustcommittees

households

Trustee representatives from 15 Area TrustCommitttes

Customary Chief Patron of Board

15 Area structures (19 villages per ward)Representatives of villages on Area Trust

CommitteesCustomary Chief Patron of Board

289 village structures (10 household villages)Households elect representatives

Customary village heads patrons of committees

2900 households x 6 people per householdTotal = 17,500 people in chiefdom



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formation of the trust. A constitution developed at ageneral meeting with area representatives have beenfollowed by the establishment and strengthening oflower level structures. The chiefdom has good forestresources threatened from charcoal burners and valuableforest products like the munketti nut.

Simwatachela is remote area lying east of theMukuni chiefdom with Zambezi River and Lake Karibafrontage. Some communities live in the semi-arid remoteZambezi valley and others on the plateau with betteragricultural potential and more secure livelihoods. Thevalley community have a rich natural resource base, avast wilderness but low wildlife populations due topoaching. The people rely on fishing, subsistenceagriculture and cross border trading. Trust establishmentis in the process of registration with an interimcommittee and establishing lower level structures.Tourism development potential is good but remote inthe valley with its attractive river frontage sights. Aninvestor has established a game ranch and sport fishingcamp and the community wishes to build on thisventure and work to increase wildlife populations.

The Inyambo chiefdom in Sesheke District is partof Western Province and a sub-unit of the Barotse RoyalEstablishment. Negotiations to establish a trust entaillong hierarchical and bureaucratic consultations. Thearea is vast and well endowed with state and local forestspresently exploited by outsiders with revenue capturedby central government, depriving communities ofvaluable resources. The development of a highway linkingLivingstone and Sesheke will attract increased investmentinterest that a viable trust could respond to and manage.

4.3 The Community Trusts and the Private Sector

AWF has invested in the trusts as common propertyinstitutions because it believes that secure and effectivelymanaged property rights can help determineconservation and development outcome. Throughoutthe time AWF has been involved in this institutionaldevelopment and capacity building process the privatesector has been actively trying to negotiate access tocommunity land and natural resources. A private sectorconsortium has been negotiating with Chief Sekute forthe past three years with a proposition to form apartnership between itself and the Chiefdom to establisha conservancy. Part of the conservation logic of theconservancy is that it would contribute to the proposedcorridor. Population density in Sekute is low with 60%settled near one peri-urban area leaving a lot of the230,000 hectares is uninhabited. The plan envisages

provision of permanent water in areas away from humanhabitation to allow wildlife to maintain populationswith minimal contact and conflict. The vision alsoincludes a substantial investment in restocking, trainingand management but depends on an exclusivemanagement deal for the private sector group. The groupwants a few strategic leases for its tourism lodges andeconomic nodes but more critically it seeks an exclusiveright of access to manage and profit from the wildlife.Part of Chief Mosokotwane’s land forms thenorthwestern part of the proposed corridor and theconservancy. The Chief has negotiated an investmentwith a private sector operator who has constructed alodge, drilled boreholes and installed pumps. A systemof anti-poaching patrols has been established on a20,000-hectare site. The investor has acquired leaseholdtitle to 5,000 hectares of the area with exclusive userights over the other 15,000 hectares and an option toapply for leasehold title The Sekute investment groupsees this as a pilot scheme for the whole conservancy.The arrangement hinges not so much on the alienationof land but on exclusive use rights to the wildliferesource on the land for non-consumptive andconsumptive purposes.

Despite its bold vision the scheme has not progressedfar for several reasons. Firstly, negotiating directly withChief Sekute and his advisors on such a bold concept isproblematic because the “deal” is based purely oncustomary authority and may be subject to severalvagaries and misunderstandings over time and not asound basis for a big project. Whereas a communitycan think in terms of perpetuity what is the life of a“partnership” and what provision is there for conflictresolution. The Sekute Trust would facilitate thepossibility of a contractual relationship between twolegal personalities and provide for structured communityparticipation and more clarity on roles, responsibilitiesand beneficiaries. The private sector group undoubtedlyhas entrepreneurial skills that the trust lacks but it isalso clear that the private sector group is depending onthe trust to raise substantial capital investment fromdonors. The relationship is confused between “forprofit” activity and the need to raise communityfinancial, natural, social and human capital. AWFcommunity conservation work on the trust must nowbe complemented by sound enterprise and conservationadvice as a trust without investment is pointless and amutually beneficial deal between the trust and theprivate sector has to be designed that delivers bothlivelihoods and wildlife habitat. By stepping around theland tenure issue into the wildlife and natural resource



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tenure issues the private sector proposition avoidsdualism in relation to the Commissioner of Lands butopens up the dualistic authority issues related to wildlifeand forest management on community land.

5 The Way Forward: Linking Practice to Policy,Legislation and Institutions

In line with its economic liberalisation policyZambia has made private sector investment in land moreattractive through the Lands Act no. 27 of 1995. AWFis working within this context to ensure that its localactions fit within the Zambian national legal, policy andinstitutional framework. Landscape conservation, socio-economic development and good governance inter-relateand land and natural resource tenure is a criticalcrosscutting issue. Whereas AWF is supportive ofdecentralization and devolution it recognises that centralgovernment has overall responsibility for policy and anobligation for monitoring outcomes, oversight,regulation, and conflict resolution and also needsrevenue to perform its role. However, the structure ofco-management relationships should not compromisedownward accountability in favour of upward if goodgovernance is to be achieved. Neither should cost andbenefit distributions within the chiefdoms and betweenthem and the central government and private sector beunfair or act as negative incentives for some parties andnot others. Good governance and positive incentivesare necessary to ensure positive outcomes fordevelopment, conservation and livelihoods (Ribot &Larson 2005).

The Chiefdoms as customary land authorities haveagreed to register participatory community developmenttrusts (bodies corporate) for the expressed purpose ofharnessing their social and natural capital to leverageinvestment in order to improve community livelihoods.Unfortunately, their natural endowments are notmatched by their tenurial entitlements because ofdualistic customary and statutory tenure systems andalso because of the challenge to reconcile patriarchaland democratic authority systems (Murphree 1993;Murombedzi 2001; Ribot & Larson 2005). The trustsobjective is to solve both the participatory issue andthe tenure duality by negotiating fair co-managementarrangements intra community and between thecommunity, central government and the private sector(Songarwe et al 2001). If that is achieved the enablingframework to receive and use private sector investmenteffectively will be improved. The question of humancapital or the capability of the local communities to

manage their institutions remains an area of concernand one which AWF is tackling through ongoingtraining and support (Shackleton et al 2000).

The Forestry Act No.7 of 1999 supports the conceptof decentralization and the objective of Joint ForestManagement and sharing of benefits (CONASA 2002a).The Sekute and Inyambo areas contain fine woodlands,forest reserves and valuable species such as Mukwa andTeak. Timber concessions exist but it is unclear whatthe terms of the lease are or if there is any local benefit.The trusts will engage the Forestry Commission innegotiations aimed at benefit capture from forestproducts through a progressive co-managementrelationship with the Forestry Commission.

The Fisheries Act does not provide a legal frameworkfor community-based fisheries management but hasexperimented on a project basis at Lake Kariba withzoned fishing areas with the area chief as head of allzones and assisted by village headmen in charge of eachzone. The Fisheries Department (Ministry of Agriculture)has provided the secretariat to village fisheriescommittees and coordinated a an area management planon a co-management arrangement under which apercentage of the fish levy is ploughed back into thecommunity (CONASA 2002a). This would be possiblefor the Sekute riverfront.

The Zambia Wildlife Act No.12 of 1998 makesprovision for ownership of wildlife under game ranchingconditions and for community benefit providedcommunity resource boards are established andregistered and embrace principles of democracy,transparency, accountability and equity. So far ZAWAhas applied this policy in the GMAs where it has aninterest in hunting revenues (CONASA 202a). TheCommunity Development Trusts could negotiate withZAWA to pilot wildlife management in the open areasbased on the GMA model or a refinement of it.

Landscape Conservation and Tenure: Landscapeand community development planning must beintegrated at appropriate levels of scale with sufficientlocal participation to ensure shared understanding ofthe core issues, and appreciation of the relative roles ofthe partners. Whereas landscape level planning movesfrom large scale down to local scale, communitydevelopment planning starts from the local householdand radiates out through village, area, chiefdom andregional level land use plans. Implementation dependson community participation motivated not so much



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by conservation concepts such as ‘connectivitycorridors’ or ‘threat abatement’ but rather by ‘culturalidentity’, ‘land rights’, ‘sustainable use’ and ‘incentives’to derive benefit from their resources. The synergybetween conservation and development goals must beclear and accepted by both sides. The appeal of a viablewildlife landscape at local level is when it complementslivelihood strategies. In a community setting landscapeplanning is integral with land and resource management,enterprise and governance activities, all of which pivoton the fulcrum of tenure. One practical conservationactivity that facilitates collaboration is by jointlyaddressing the ‘hard edge’ of human wildlife conflictbecause it links wildlife habitat to the people that wouldbe in the frontline of its management. Mapping thewildlife corridor combined strategic household levelproduction of crops like chilli peppers and community-based problem animal control could engage all the actorsin the task of reducing wildlife costs and enhancing itsbenefits. Engaging those communities living in areasfacing the highest risk of land alienation to the privatesector is another key entry point for conservationplanners.

Socio-economic Development and Tenure: Positivelandscape level conservation in community areas canbe motivated by linking livelihood needs to landscapebased goods and services. The neo-liberal environmentin Zambia today, in terms of land, is premised on theprovision of land property rights and a market in whichthey can be traded. There is rapid growth in investmentinterest in specific areas held under customary tenure,primarily riverine sites and those with wild land andwildlife potential. The present extent of land alienatedto the private sector should be mapped out and thefinancial efficiency, socio-economic equity and ecologicalsustainability of existing deals evaluated. Then a strategyshould be developed to improve the effectiveness ofexisting deals and to ensure better future deals. The factthat the parties to land privatisation, Chief, DistrictCouncil and Land Commission, do not have or share adatabase on this information means that no performanceassessment exists. This must be corrected! In addition,it is clear that the way the Land Law is presentlyadministered means that fundamental principles ofinstitutional economics and common propertymanagement are askew because of a lack of congruencebetween the rules governing the withdrawal of resources(i.e. the granting of leases by the chief) and the rulesgoverning the building, restoring and maintaining theresource system (i.e. control of the lease by the LandsCommission) (Ostrom 1990; Cousins 2000). It is not

sufficient for AWF to deliver a few successfulconservation business ventures (CBVs) because atpresent they do not adequately serve conservation ordevelopment goals. The combination of a few goodCBVs in the context of an improved land tenure andprivatisation environment could make a very bigdifference.

Governance and Tenure: The Chief holds tenurein trust on behalf of his subjects and that principal isbeing institutionalised within the trust structures toensure transparency and accountability. It is no smallchallenge to transform traditional consultativestructures into modern participatory forums and toreverse upward into downward democraticaccountability (Ribot & Larson 2005). Equity andgender within the trust structures must be addressed toavoid the contradiction of traditional and patriarchallocal authorities being nested within a democraticconstitution that provides equal rights to all citizens.Cousins (2005) believes that democratisation, liketradition, is a work in progress and that we need bothtogether not either one or the other to reconstituteeffective local common property land and naturalresources management. Customary systems canstrengthen and vitalise governance for land and associatedresources held by and for the benefit of communitiesand also enable policy makers to identify resourceconstellations that are still subject to or ought to revertto common property management. Culture is dynamic,actively constructed in character and responsive tochanging political and economic context andcircumstance and rural communities do not need todisavow their cultural identities and do not need to seethese in contradiction to their identities as citizens.Proponents of ‘tradition’ have to accommodate notionsof gender equality, for example, and make argumentsabout the accountability of traditional authority inmodern terms. This means opening up political spacefor democratic contestation within tradition. Thepressures exerted by global economic forces, processesand policy prescriptions have led Zambia to adoptliberalisation, privatisation and market deregulation. Afundamental problem hindering democraticdecentralisation of NRM concerns the structuralinequalities that prevent politically and economicallymarginalized classes and groups from effectively voicingand defending their resource interests and claims vis-à-vis powerful competitors (Meyen & Doornbos 2005).The objective, therefore, is for institutional change tobring about more efficient, sustainable and equitableforms of land and NRM through the enhancement of



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local participation. AWF must remain committed tothis process, as it is central to its strategy.

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This Publication is funded by the NetherlandsMinistry of Foreign Affairs/Directorate Generalfor International Cooperation (DGIS).

www.awf.org

© 2005 African Wildlife Foundation

This document was produced by AWF’s Program teamFor more information, please contact [email protected]

The project work in Kazungula Heartland wassupported by

landscape conservation and land tenure in zambia

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