Wednesday, July 25, 2012

Malawians with Foreign Citizenship: Land Access Laws

LILONGWE, MALAWI - APRIL 08:  Madonna and Lour...
LILONGWE, MALAWI - APRIL 08: Foreign born celebrity, Madonna legally has the same right to land in Malawi as Malawians that take up citizenship abroad. Her celebrity status though gives her more privileges in land ownership then Malawians. Photo: Madonna and daughter Lourdes tour one of the Raising Malawi initiatives in Malawi (Image credit: Getty Images via @daylife)

Malawian law provides for various restrictions on foreign land ownership. Under the law, the following provisions for foreigners  also legally apply to Malawians living abroad that take up foreign citizenship and now have the legal status of "foreigner" in Malawi.  Below is an unabridged version of the the Land Access laws for all non-citizens (both Malawian born and non-Malawian born):

Land Access for Non-Citizens (Malawi)

1. The amount of freehold land in Malawi owned by non-citizens will be frozen and limited to freehold land already registered to non-citizens as of 17th January, 2002. Non-citizens will no longer be allowed to acquire title to any new freehold estate.

2. Non-citizens and foreign companies will be permitted to lease land from the Government or directly from private landowners for investment purposes in accordance with their residential and investment objectives.

3. From the coming into force of this policy, freehold ownership will be a privilege reserved for citizens of Malawi. Foreign investors interested in freehold land for investment purposes will be encouraged to form partnerships and/or joint ventures with Malawians.

4. In accordance with current Malawi immigration laws, non-citizens currently in possession of
freehold estates in Malawi will be encouraged to obtain Malawian citizenship in order to retain
their free ownership. The citizenship right of eligible non-citizens will be protected by law and
will not be politicized or left to individual discretion.

5. Subject to existing transfer laws, non-citizens already in possession of registered freehold
assets of publicly traded corporations shall be permitted to transfer such assets to other noncitizens
only when deemed necessary to preserve the investment value of these companies.

6. With the exception of a few very special types of investments, such as mining, forestry and
some perennial tree crops such as tea (a comprehensive list of eligible investments shall be
prepared), most leasehold terms for industrial and commercial investment purposes throughout
the world generally are for less than 50 years, with renewal clauses allowed. For that purpose,
the standard leasehold term for land leased for investment purposes in Malawi will also be for a
renewable term of 50 years or less.

7. The standard leasehold term for owner occupied residential development will remain 99
years with renewable clauses allowed.

*Definition: Freehold land is land that you completely own independent of government. The opposite of this is non-freehold land where the government is the actual owner and has the right to the land, including reclaiming the land (usually with compensation) if needed.

Source: Malawi Land and Policy Act Dated: January 17, 2002 

Related Article: Land & Citizenship in Malawi

Wednesday, July 18, 2012

Land & Citizenship in Malawi

Tea plantation in Malawi, Africa
Tea plantation in Malawi  (Photo credit: Wikipedia)
In what has been termed the 'new scramble for Africa', Africa's land is being quickly encroached upon by foreigners. This has resulted in renewed efforts by non-Africans to utilize African land for various projects and economic pursuits. Many of these entities are actively pursuing African politicians in order to make deals that push Malawian citizens off their land. Large pockets of land in Africa are now being bought by oligarchs, agribusinesses, and wealthy individuals. Nearly 5% of Africa's land is now owned by foreigners.  Malawi has not escaped this growing trend. There has been a growing trend for lake side investment properties being owned by foreigners with no ties to the country. The FAO (Food and Agriculture Organization) reported that Djibouti has leased undisclosed hectares of land in Malawi. More recently, the vacant site of Madonna's school where a vibrant community used to live, serves as a reminder of how access to land can quickly become problematic in Malawi. Land ownership issues are also not consistently enforced and this results in problematic and unfair disputes that can only be resolved in court as witnessed in the Mary Woodworth vs Leston Mulli  case. Ownership of land should be clear, equal, protected, and systematic for all Malawians. On one hand, we are seeing  cases where land is actively being given by the government to foreigners with little ties to Malawi to help establish 'goodwill' and investment (as is the case with Madonna). On the other hand, lack of Dual Citizenship deny Malawians with strong ties to Malawi from having land that belongs to them (as is the case with Malawian-born Woodworth where some questioned her right to own her own land due to her British citizenship) or from purchasing new investment land. With growing pressure on land, one should encourage the Malawi government to focus on protecting Malawian land ownership rights and restricting rules of foreign land ownership without penalizing Malawians that become 'foreign' by virtue of gaining foreign citizenship. Malawians that have their citizenship revoked or are otherwise unable to claim citizenship, should expect to see tighter restrictions on land ownership without being subjected to these strict laws that are aimed at those with no ties to the country. Dual Citizenship provides a way in which Malawi can ensure that land ownership rights of Malawian born individuals and their descendants remain secure without having to loosen laws that help prevent encroachment by those with little or no ties to Malawi.  Since one cannot expect the government to relax land restrictions for foreigners, addressing citizenship is pertinent. This is where land ownership laws in Malawi complicate issues of citizenship and Dual Citizenship laws for Malawians becomes important.

Land ownership laws in Malawi protect the right of Malawians to own free hold land (land that you completely own independent of the government). Non-Malawian citizens however are not allowed to own land. The exception is for land that was already foreign owned prior to the Land Act. This land can be passed on to foreign landowners and mainly affects the plantations/estates in Malawi that are largely foreign owned.  Foreigners in general are only allowed to lease land from the government under a 99-year lease (where land is owned by the government). The implications for citizenship in land ownership laws is profound because it affects a Malawian individuals right to inherit ancestral or family property. It prevents a Malawian individual that already owns land from passing land they own to their foreign born offspring. It also prevents Malawians from passing this land to  their children that have taken up citizenship abroad in order to provide for the family. Citizenship is important because it provides Malawian landowners or potential land owners with greater protection for their land under the law. It provides greater security that their land investments (for business or private use), are secure and are not an investment risk. It is important that citizenship laws are addressed so that land issues do not result in lengthy and costly court battles. Having the ability to buy land or keep ancestral land is therefore key to advancing the Dual Citizenship debate for Malawians abroad.

Author: Sitinga Kachipande

Related Pages: Impact of Dual Citizenship Laws 
Malawian Land Policy Act

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