Augustine Mulolwa
Department of Surveying, University of Zambia, Lusaka, Zambia
e-mail: Amulolwa@eng.unza.zm
ABSTRACT
For a land market to function properly within the framework of an open (free) market, the various components in the cadastral infrastructure should work coherently together. Otherwise, if any component does not, it may induce distortions in the market.
Imperfections in the land (rural and urban) market in Zambia are, in part, attributed to a poor cadastral infrastructure. The cadastral infrastructure here refers to the institutional, legal, financial and technical arrangements under which the processes of cadastral surveying, land registration, conveyancing, and land use planning are performed.
The paper discusses the status of the infrastructure, its strengths and weaknesses and some impacts on the land market. The cadastral surveying practices are based on a law that has not kept abreast of changes in technologies, a law which in many forms is seen to be very restrictive. A system of deeds registration based on the Torrens system is followed. However, this is often sporadic in case of customary land. Conveyancing is based on some obsolete UK statutes. Above all various activities of planning, surveying, registration and conveyancing are spread among different organisations. This makes coordination difficult. The available technologies in most organisations are inadequate to match the demand for land.
INTRODUCTION
This study, carried out as part of the author’s PhD research, involved determining the components of and deriving questions on the operations and management of the cadastral infrastructure. After reviewing various literature, the main themes in the UN publication ‘Guidelines for land administration’ (UN 1996) were adopted as components of the cadastral infrastructure. By reviewing the Guidelines, a number of questions were derived which form the basis of the general description of the Zambian cadastral infrastructure. Data for the assessment was gathered through interviews based on a questionnaire comprising the various components mentioned above, through literature reviews, and through formal and informal discussions.
Before going any further, it is appropriate to define what constitutes a cadastral infrastructure. The definition can be given by analogy to the road infrastructure. This does not only consist of the physical structures, but also of the road traffic organisations and regulations, standards, road taxation and development policies, and all other aspects which make driving on the roads safe, convenient and comfortable. If there were no standards for driving, imagine the confusion and danger. Therefore, cadastral infrastructure can be thought of as a collation of resources (financial, legal, etc.) and a network of institutions which enable the cadastre or cadastral system to fulfil its role in a society. In this case, the infrastructure refers to the institutional framework, legal framework, financial and technical matters. This discussion is restricted to the institutional and legal framework only.
BRIEF HISTORY
Before the advent of the white settlers in Zambia, the western concept of "cadastre" never existed. Land holding and transactions were controlled by customs. In the ensuing years of white settlement, the British legal system started filtering into the country. In 1911 the British South African Company (BSA), a company exploring for minerals, was given power by the King of the United Kingdom to administer the country. The Company was empowered to apportion land to natives for their occupation. To the settlers, land would be given on freehold or leasehold, and such holdings were registered. However, the natives were not allowed to get title. This is attributed to the strong belief then that under African traditions individual ownership of land did not exist (Mvunga 1980).
In 1924 the British Colonial Authority formally took over the administration of the country from the Company. Between 1928 and 1964 special areas called native reserves and trust lands were designated for the exclusive use of Africans. These areas were vested in the Secretary of State for the colonies and administered by the Governor of the colony, then Northern Rhodesia. The remainder of the country was called Crown land for the occupation of the white settlers only. This was vested in and administered by the Governor using English law. The non- natives were allowed to hold land in reserves for not more five years. In trust land they could be granted land if this was seen to be in the best interest of both races. Alienation of land in reserves and trust land required the consent of the native authority (now rural councils).
After independence in 1964 the land categories remained but Crown land became known as state land, and all land was vested in the President of Zambia. In 1975 all freehold estates were abolished and all interests in land were abridged to statutory leases of 99 years duration. All land transactions required the consent of the President, and sales of bare land were also forbidden. Land was seen as a gift of God and as such it should not be sold, but only unexhausted improvements on it should. This was made possible through the enactment of the Land (Conversion of Titles) Act ,1975 which formed the basis of land administration in the country. The Act was prompted by the exorbitant prices in sales of vacant state land (Mvunga 1980).
There was discontent over issues of land without value, the consent requirement, performance of the land market, and the general administration of land in the country. After the new government was voted into power in 1991, changes were sought to this scenario which culminated into a few new acts such as the Lands and Deeds (Amendment) Act 1994, Common Leasehold Act 1994, and Lands Act 1995. Further more, the Government has produced the Land Policy Document (1996) where it spells out its major policy objectives on land administration.
INSTITUTIONAL FRAMEWORK
Land policy
Land policies consist of a whole complex of socio-economic and legal prescriptions that dictate how land and benefits from land are to be allocated (UN 1996).
The current land policies in Zambia are contained in the Land Policy Document of 1996. The Document outlines the main policy objectives as improving land delivery and access to land information, the process of physical planning, land development monitoring, and recognising customary tenure. Other objectives are improvement of revenue collection, promotion of investment, gender balance in land holding, codification of land related legislation, regulation of estate management practice, and mobilisation of human, financial and technical resources. It is planned that major land reforms be completed by December 1998, while decentralisation of the Ministry of Lands (MoL), the lead institution in land delivery, to district level be implemented by January 2005. These objectives have been formulated within the framework of a liberalised market under which most of the state owned companies and assets have been privatised.
Some of the main achievements so far include the establishment of the Lands Tribunal and the Land Development Fund. The Tribunal is intended to settle all land related cases and has already started working. The Fund is meant to encourage land development through provision of funds for services in newly opened up areas. Though some progress has been made in a number of areas, the Land Policy Document does not spell out who and how the objectives stated therein will be implemented. It thus leaves implicit the roles of the public and private sectors in this reformation process. This also makes it difficult to monitor progress towards the fulfilment of the objectives.
Land delivery process
This process involves identification of land for settlement, land survey and registration, land valuation, land use control and management, and infrastructure and utilities management. In Zambia, the Ministry of Lands (MoL) is the lead agency involved in land delivery. Apart from the MoL, there are eight other institutions including the traditional rulers which participate in the process. The process is guided by not less than ten pieces of legislation administered by the different institutions. Until recently, the offices of the MoL could only be found in a handful of towns. This often implied long distances of travel by land applicants. The delivery process has often been criticised for being too long, too cumbersome, restrictive and costly. Land is provided without being first serviced.
Land information management
Policies have been developed to set priorities, to introduce land information systems, and to mobilise human, financial and technical resources (GRZ-a 1996). However, there is no objective directed towards the determination of public and private information requirements, and information utilisation and flow. In addition, nothing is stated on setting standards for performance of the cadastral system and methods of monitoring them, on assessing and designing new tools and techniques, and on ensuring data security.
Organisation and management
There are in total nine ministries involved in the cadastral system. Coordination between the ministries is poor due to the highly hierarchical structure of Government, which renders horizontal communication difficult, and due to lack of an integrated policy on land or land information management.
The MoL comprises the Departments of Surveying and Lands responsible for all land surveys and issuance of title and registration, respectively. So far (1997), the Survey Department has established offices in seven out of nine provinces of Zambia to provide cadastral survey services. The Lands Department has established offices in all the nine provinces. In addition, one regional office has been set up in Ndola, one of the nine provincial centres, to provide titling and registration services. This implies the latter services will now be provided in two centres; the Ndola office will cater for the northern region while Lusaka will cater for the southern region. The role of the provincial lands offices still remains largely of offering advice, monitoring land development and collecting ground rent. Zambia is a vast country (about 753 000 square kilometres). Therefore, distances from the provincial and registration offices are still huge while the communication systems are underdeveloped. This implies extra costs for one applying for land.
The cadastral plans and land (ownership) registers are government property, and are kept and managed by the Survey and Lands Department, respectively. The private sector’s role is restricted to providing such services as cadastral surveys and valuation. Licensing of surveyors and tax collection are government obligations done by government. However, it is now clear that there is insufficient capacity within the MoL to offer all services, hence some suggestions regarding partial commercialisation. For instance, Mapping Services section within the Survey Department has not been functioning for over five years now. There are no mechanisms to ensure that user needs are met. In 1991, there was an estimated cadastral survey backlog of eight to ten years (Shreeve and Moyo 1991), and this has not dropped since demand for land has been on the increase. The private land survey sector is so small (one-man establishments) and so undercapitalised that it has failed to cater for the excess cadastral survey demand.
Rapid access to relevant and correct cadastral information is hampered by the manual storage in most institutions. However, the Lands and Valuation Departments have computerised their data handling systems with the help of international donors. The Valuation Department now produces a quarterly bulletin on market values and trends for the entire country which are available at a fee. Data standards and pricing are set by particular institutions generating the data. Data security and privacy are ensured only as far as entry and modification of the data in the registers are restricted to authorised persons only i.e. the Surveyor-General and Registrar in case of cadastral plans and land records, respectively. As regards lands records, there is another administrative restriction on accessing records which do not relate to ones own property. A requisition form has to be filled in for all land record searches. Copies of cadastral plans can be obtained for any area, without filling in such forms, at a fee. Various maps and aerial photos can also be bought from the Survey Department. The maps and cadastral index plans are not regularly updated and are thus quite outdated.
The Lands Department is headed by the Commissioner of Lands. He has the delegated powers of vesting land in the State President and of approving all land transactions. He is assisted by the Chief Registrar of Lands and Deeds and the Deputy Commissioner, whose functions are not presently clearly spelled out (GRZ-b 1996). The Department is organised into the Lands Office, headed by the Chief Lands Officer, and the Lands and Deeds Registry, headed by the Chief Registrar. It administers the Lands and Deeds Registry Act. The Survey Department is headed by the Surveyor-General, assisted by three Assistant Surveyor -Generals for Mapping, Cadastral and Survey Services, respectively. The Department administers the provisions of the Land Survey Act and Survey Regulations. Both the Lands and Survey Departments lack adequately trained personnel to manage survey and land records, and often records storage and retrieval is very slow as a result. There is, however, no staff training programme to address this problem. Funding of the Ministry by the Government is also not adequate. This has led the Survey Department to institute a cost recovery scheme for cadastral surveys and all other services. However, the Department still faces a bleak future due to lack of proper management which is partly attributed to abrupt departure of donors who previously managed the Department, and also partly due to lack of motivation amongst Zambians.
LEGAL FRAMEWORK
Legal status of land
The main legislation affecting the ownership, value and use of land are the Lands Act, Land Survey Act and Survey Regulations, the Lands and Deeds Registry Act, the Valuation Act and the Town and Country Planning Act. The Survey Act controls the licensing of land surveyors and the manner of carrying out cadastral surveys. The Lands and Deeds Registry Act establishes the types of registers to be kept, their authority and the issuance of title. The Valuation Act controls the registration of valuers and which property should be considered for the valuation roll, whilst the Town and Country Planning Act controls the use of land through the requirement of development and sub-division permits. There a lot more other pieces of legislation related to the cadastral process which make land applications and the general administration of land difficult.
The Lands Act provides for the general administration of land and the establishment of the Land Development Fund and the Lands Tribunal. The Lands and Deeds Registry Act defines land as ‘land within Zambia, and includes units and remainders under common leasehold schemes, and tenements and hereditaments, but does not include any mining right as defined in the Mines and Minerals Act in or under or in respect of any land’. On the certificate of title land is described as ‘as described on the diagram except and reserved all minerals, oils and precious stones whatsoever upon or under the said land’. This deviates from the concept of ‘everything from the centre of the earth, and up to the sky’.
The only recognised nature of ownership is leasehold and customary holding. Leases may be for 14 years in case of unsurveyed land, 30 years for settlement schemes and 99 years for surveyed land. There is no prescription of land rights through adverse possession under any law in Zambia. However, very often squatter areas, through political intervention, have been converted into statutory improvement areas and owners offered occupancy licences of 30 years duration. The rights of purchasers and mortgagees are protected through the Lands and Deeds Registry Act, and those of the land lord and tenants through the Landlord and Tenants Act. Rights and restrictions are indicated on the certificate of title as memorials. Not all restrictions though are indicated. All forms of statutory restrictions are codified but appear under different pieces of legislation such as environment, water and land transfer. The only instance where use rights can change to ownership rights is during conversion of customary tenure to leasehold. There is no formal adjudication of rights on both state land and customary land. In customary land, views of the traditional rulers and district councils are used as a basis of allocating customary land. The Lands Tribunal has handled a number of cases arising from unsatisfactory determination of rights.
Land tenure
All land in Zambia is vested in the Republican for and on behalf of the people of Zambia. The only recognised forms of tenure are leasehold and customary. Leasehold is practised on state land (about 8 % of total land area) and customary tenure in customary areas. Customary holdings can be converted into lease holdings. Practically all customary land that is converted to leasehold ceases to be customary land contrary to what the MoL states in its Explanation Note to the Lands Act 1995 (MoL 1995). During first allocation of customary land the consent of the traditional ruler in whose area the said land is situated is a compulsory requisite. In all other subsequent transactions, the rules which apply are those applying to lease holdings on state land. There is no where in law where it is written that leaseholds on customary land will remain subject to local customs and traditions. This also seems to be one of the reasons why some traditional rulers are opposed to the implementation of the Lands Act 1995. Use and occupancy rights are protected under the Lands Act, but they are not registered.
Land registration
Zambia follows a system of deeds registration guided by the Lands and Deeds Registry Act. The system of registration is based on the English land statutes prior to 1911 such as the Bills of Sales Act 1878 to 1882, Land Transfer Act 1897 and the Law of Property Act 1881. These statutes are no longer in use in the UK and copies are not easily available. Three types of registers are kept; lands register (for all land other than common laesehold), common leasehold register (for strata title) and miscellaneous register. All the registers are kept by the Lands Department. There are no private registers. Recording is done when whole or part of the land is transferred. The ownership records are stored separately from property boundaries (cadastral plans). One is maintained by the Lands Department and the other by the Survey Department.
The legal definition of property units does not always reflect the situation on the ground due either to wrong boundary identification or to irregular updating of registers. The system has been described as archaic, cumbrous and expensive (Nzatamulilo 1970). There is no difference in conveyancing costs between registered and unregistered land. Land is described by reference to a diagram attached to any lease of a term longer than 14 years or a sketch plan if the term is less than 14 years. A certificate of title is conclusive evidence of title. A provisional certificate of title also has the same effect but it may be cancelled or amended by a court action. In case of original grants of state land a certificate of title is given. In all other cases, first a provisional certificate is given, then after six years, a certificate of title can be applied for. The only purpose of registration is to avoid documents becoming null and void for lack of registration. No certificate is issued in respect of sub-leases granted by a lessee of leasehold including sub-leases granted by local urban authorities. On expiry of the lease agreement, the buildings and all attachment revert to the Government.
For ascertaining rights, extensive record searching is still necessary. This is made difficult by the fact that records are not updated regularly, and the manual storage of records in some cases. Registration dose not cover all the land in the country. By a rough estimation, less than 15 percent of the land is registered on state and customary land together.
Boundaries
The marks used in delineating boundaries are point features referred to as beacons. All surveyed property is supposed to be marked with beacons which is an iron peg in concrete. The types and mode of construction of beacons which are intended for urban, peri- urban and farm plots are specified in the Land Survey Act. These marks just act as evidence of the extent of property. In case of some disputes the ruling of the Lands Tribunal or a court of law may override this evidence. The Land Survey Act indicates when a beacon is deemed to have been lawfully established; that is when it is re-surveyed or when its position has been established by a court action.
Cadastral surveying
Cadastral surveying in Zambia is guided by the Land Survey Act and Survey Regulations. It provides for the licensing of land surveyors, the manner of conducting surveys and preparing cadastral plans, for the protection of beacons and other survey marks, and for the establishment of the survey control board responsible for licensing of land surveyors. The board is headed by the Surveyor-General. Licensing applies only to individual land surveyors, not to companies.
No diagram of any parcel of land is accepted for registration, unless such diagram has been approved by the Surveyor-General. All cadastral surveys are rigorously examined by the Survey Department. Backlogs of work do occur at this stage also. A land surveyor is responsible for ensuring accurate surveys and is responsible to the Surveyor-General for their correctness. Neither the Government nor any officer thereof, is liable for any defective survey performed by a land surveyor, notwithstanding that such plans have been approved or accepted for registration. The law prescribes who may carry out cadastral surveys, and the qualifications of individual land surveyors. It indicates acceptable survey standards, but these relate to the methods used and not to the output, such as the accuracies of traverses used to place beacons and not the accuracies of the beacons and plans. In addition, the Act prescribes the methods of surveying. It is because of some of the above prescriptions that the Act is regarded as rigid, restrictive and unnecessarily costly.
Land parcel information
Government officers responsible for maintaining the different registers are not liable for any incorrect data in the registers. However, it is demanded of them to check all entries for errors. Rights of privacy over land are not enshrined in any act, but there are some administrative restrictions now in allowing access to ownership records to only those records which pertain to ones property. Special permission is to be obtained for other searches. Cadastral plans are not restricted. Ownership of all cadastral data is in the Government, and copyright rules have now been enshrined in the Copyright and Performance Rights Act 1994.
THE LITMUS TEST: MEASURING SUCCESS
The test is based on the various aspects described in the foregoing sections. It is assumed that the availability of the aspects in a cadastral infrastructure would ensure a its success. This assumption has not been tested but the aspects are necessary ingredients in an efficient and effective cadastral system (UN 1990, UN 1996). To assess the performance of the cadastral infrastructure a scoring system is used with a unit weight for all the critical success factors. The scoring is 3 for high, 2 for medium, 1 for low and 0 for none. The factors are briefly discussed below (FIG 1995);
Institutional framework
| Aspects | Critical Success Factors |
||||||
| Security | Clear & simple | Timely | Fair | Accessi-ble | Afforda-ble | Sustaina-ble | |
| Land policy | 2 |
3 |
3 |
1 |
2 |
1 |
1 |
| Land delivery | 3 |
1 |
1 |
1 |
2 |
1 |
1 |
| LI management | 2 |
1 |
1 |
1 |
2 |
2 |
2 |
| Organisation | 1 |
1 |
1 |
1 |
1 |
1 |
1 |
| sub-total | |||||||
| Total score | Percentage score |
% |
|||||
N.B. The scores are derived as follows; e.g. for organisation and the factor timely, we ask the questions, are the organisations able to provide data timely and covering all land parcels, are there mechanisms to ensure that? From the description of the infrastructure we find that inter-institutional coordination is poor, data storage is mostly manual, and there are staffing problems. Taking into considering all these weaknesses, a score of 1 is deemed appropriate.
Legal framework
| Aspects | Critical Success Factors |
||||||
| Security | Clear & simple | Timely | Fair | Accessi-ble | Afforda-ble | Sustaina-ble | |
| Legal status of land | 2 |
1 |
1 |
2 |
2 |
1 |
2 |
| Land tenure | 2 |
2 |
0 |
2 |
2 |
2 |
2 |
| Registration | 2 |
1 |
1 |
2 |
1 |
1 |
1 |
| Boundaries | 3 |
2 |
1 |
1 |
2 |
1 |
1 |
| Cadastral surveying | 3 |
1 |
1 |
1 |
3 |
1 |
1 |
| Parcel information | 3 |
2 |
1 |
2 |
2 |
3 |
3 |
| sub-total | |||||||
| Total score | Percentage score |
% |
|||||
A score of 100 percent would indicate a perfect system system. Both the institutional and legal framework percentage scores indicate that they are not very good and still need further improvement. Within the institutional framework the ‘land delivery’ and ‘organisation and management’ aspects need special attention, whilst within the legal framework the ‘registration’ and ‘cadastral surveying’ processes need to be improved to meet the needs and aspirations of increasing land demand. This type of assessment is subjective but helps to ascertain the performance of a cadastral system, and also to identify particular aspects of the system which may need urgent attention. From the above scores it can also be seen that ‘security’ scores quite high in both cases. This may suggest that particular attention has been paid to maintaining that aspect at the expense of others. This appears to be so in case of the Land Survey Act and Regulations which prescribe rigorous methods of survey and very high standards of accuracy in beacon placement, in a quest to provide certainty in beacon identification.
DISCUSSION AND CONCLUSION
The cadastral system in Zambia has been in operation since the early 1900s. The first cadastral surveys date back to 1903. The system initially was intended to serve the settler population. After independence in 1964, the system was seen to be inadequate to serve the interests of the Zambians. Hence, modifications in the legislation were made and continue to be made, such as the Land (Conversion) of Titles Act 1975 and the Lands Act 1994. Regardless of the new changes, a number of quite old statutes are still in use, and keep on influencing the operation of the cadastral infrastructure. The present land delivery procedures, organisation and management structures, surveying and registration procedures worked when the demand for land was low, but clearly now this is not the case. With the increase, therefore, of demand for land and the dwindling of government financial resources, these structures and legislative arrangements have proved to be inadequate. This increase is fuelled also by the privatisation of government enterprises and the sale of government houses, and an apparent awakening by Zambians to own property.
What is seen is an awakening land market which for long has just been simmering. Data is regularly available on market values of both vacant and developed land. Though the market is expanding, the volume of transactions is still small, averaging about 150 transactions per three months, for the whole country. This could be partly attributed to the slow delivery of land on to the market due to some of the problems discussed above and due to some other general economic problems in the country. There is a high variation in values between towns and within towns due to various factors such as variation in cost of surveys and valuation fees, and availability of serviced land.
With the liberalisation of the economy, the land market is likely to continue expanding. However, to a large extent this will depend on removing most of the imperfections which infest the cadastral infrastructure as this plays a major role in availing land on the market. The main problems needing urgent improvement are the land delivery process, the organisation and management of cadastral institutions, the registration and cadastral survey processes.
The Lands Act 1994 and Land Policy Document (1996) are intended to address these legal and management aspects of land. However, issues of who does what and how to implement the Act and the policy should be clearly defined.
REFERENCES
FIG, 1995, The FIG statement on the cadastre, no. 11, Canberra, FIG
GRZ-a, 1996, Land policy document, p18, Lusaka, Ministry of Lands.
GRZ-b, 1996, Final restructuring report for the Ministry of Lands, pp3 - 19, Lusaka, Management Development Division.
MoL, 1995, Explanation note of Lands Act 1995, pp 1 - 4, Lusaka, Ministry of Lands.
Mvunga P.M., 1980, The colonial foundations of Zambias land tenure system, pp1 - 50, Lusaka, NECZAM.
Nzatamulilo J.C, Status of cadastral surveys and land registration services in Zambia, Seminar on on Cadastre, pp1170 - 2073, Addis Ababa.
Shreeve S.T; R.M. Moyo, 1991, The cadastral challenge in Zambia, Commonwealth Surveyors Conference 1991, paper XI.
UN, 1990, Guidelines for the improvement of land registration and land information systems in developing countries, ppii - iii, Nairobi, Centre for Human Settlements (Habitat).
UN, 1996, Land administration guidelines- with special refrence to countries in transition,
pp3 - 75, Geneva, United Nations.