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Gender and Land Rights Database

Malawi

Rights entrenched in the Constitution

 

The Constitution, 1994, reviewed in 2004:
-  Article 13: lists the principles of national policy which include obtaining gender equality for women with men.
- Article 22[1] states that the family is the “natural and fundamental group unit of society and is entitled to protection by society and the State”.
- Article 22[3]: “All men and women have the right to marry and found a family.”
- Article 22[4]: “No person shall be forced to enter into marriage.”
- Article 22[5] clarifies that Sub-sections [3] and [4] shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation.
- Article 24[1] stipulates that, “Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status which includes the right to be accorded the same rights as men in civil law, including equal capacity to enter into contracts and to acquire and maintain rights in property, independently or in association with others, regardless of their marital status.”
- Article 24[1b] stipulates that in case of dissolution of marriage women have the rights to a fair disposition of property that is held jointly with a husband and to fair maintenance together with the children.
- Article 24[2] states that, “Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women such as… deprivation of property, including property obtained by inheritance”.
- Article 44[4]: “Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law” (15).

Since 2004 the Malawi Law Commission has been involved in a process of constitutional revision on matters related to child care and protection; land; marriage; divorce (15).

Women's property and use rights in personal laws



In Malawi, the laws governing marriage are derived from different sources: statutory law, customary law, common law and the Constitution. From these different sources stemmed different regimes with different rights and obligations. At present, the law recognises three types of marriages: statutory marriage, customary marriage and marriage by repute or permanent cohabitation.

1.    Statutory marriage:
The Marriage Act, Act No. 3, 1902, Chapter 25: 01, Laws of Malawi:
- Regulate the marriages under statutory law. The law follows the old English common law system. Under this law marriages are monogamous (12).
- Section 19: Prohibits marriage under the age of 21 unless consent is otherwise obtained in writing.
- Section 43: Makes bigamy an offence punishable by law and the sentence is five years imprisonment (16). This section therefore prohibits marriage where either of the intended parties has been married under customary law. Further, any person whose marriage is contracted under this Act cannot enter into any other marriage under any law.

2.    Customary marriages:
- There is no single Malawian customary law as customs vary from one area to another.
- Customary marriages may be polygamous;
- In theory, men should consult and seek the approval of their wives before they contract another marriage but in practice this is never done;
- There is no specific age requirement. Puberty and not age is generally the determining factor;
- A husband has an obligation to provide a house for his wife or wives, to support them and his children;
- A wife is obliged to take care of the household and the children.

3.    Marriage by repute or permanent cohabitation:
- Not governed by any law but the courts have tended to provide cohabitating couples access to the same rights and privileges as couples married under statutory or customary law;
- The courts have been left to decide what constitutes a marriage by repute or permanent cohabitation.

The Divorce Act, No. 5, 1905, Chapter 25:04, Laws of Malawi:
- Marriages registered under the Marriage Act, 1902 cannot be terminated within three years except on the ground of exceptional hardship or exceptional depravity (12).
- Section 5 outlines five grounds for divorce: adultery, desertion, cruelty, insanity, and if the husband has been guilty of rape, sodomy or bestiality.
- Section 23 allows a husband to claim damages for the adultery of his wife but not viceversa.
- The Act does not provide for the division of matrimonial property upon dissolution of the marriage. This matter has been left entirely to the courts to decide.

- The African Marriage (Christian Rites) Registration Act, Chapter 25:02 provides for the registration of African marriages celebrated according to Christian rites (16). African Christian Marriages, which are customary marriages, are potentially polygamous except in the Roman Catholic, Seventh Day and Anglican Churches who also register their Marriages under the Marriage Act (12).

The Married Women Maintenance Act, 19488, amended in 1998:
- Makes provision for maintenance of a married woman and her children living apart from her husband, where the husband:  1) has been convicted of an offence which is committed against the wife; 2) disappeared from home; 3) is guilty of continuous acts of cruelty to her or her children; 4) neglected to provide support for her children; 5) is consistently having sexually transmitted diseases; and 6) has forced her to become a prostitute (16).
- Cohabitant, single and unmarried mothers cannot claim maintenance under the Act.
- Section 6 also prevents women who have been found guilty of adultery from making an application for maintenance.

- Although the Constitution provides for equal rights for women to the acquisition and maintenance of property rights without regard to their marital status, no specific law governs matrimonial property rights between spouses during marriage and courts are reluctant to assume joint ownership without a clear provision in the law (12).

Inheritance legal mechanisms

 

The Wills and Inheritance Act, 1967, Chapter 10:02, Laws of Malawi:
- Sections 16[a, b] provide that a woman who is married patrilocally is entitled to three fifths to share with other dependants of a deceased husband who dies intestate. In contrast, a woman married matrilocally is entitled to half of the intestate estate to share with other dependants. Women who are not Malawians are guaranteed at least the first K10 000 of the estate (12).
- Sons and daughters have equal inheritance rights to immovable property from their parents.
- As for widowers or men, the law presumes that men cannot be dependent on women and therefore, makes no provision for husbands to inherit from the intestate estates (property left when the owner died without making a valid will) of their wives.
- Section 14 stipulates that, in case of marriages contracted under the Marriage Act, a spouse receives the first MK10 000 worth of property, while the rest is to be divided between her and the children; if a spouse is excluded from a will, the court cannot override such exclusion if it is clearly intentional. An overall review of the Wills and Inheritance Act is in place to address which led to the drafting of the Marriage, Divorce and Family Relations Bill of 30th December 2005.which has yet to be adopted.
- The 1998 amendment to the Act made it a crime to dispossess surviving spouses and children. The amendment further required the appointment of special prosecution officers to focus on the offence (12).
- The Act does not address the issue of customary heirs which may lead to property grabbing especially by male relatives.

Land Legislation

 

In 2011, the Law Commission pointed out that the socio-economic situation in Malawi perpetuates gender inequality. Consequently, women own very little, if any, property.
The Commission further noted that women often lack the educational qualifications and paid wage status to enter the job market. Their subordinate status to men sometimes prevents them from exercising the rights of ownership even when they accumulate property. As a result, women are disproportionately affected by constraints to agricultural production, such as lack of access to land, capital, labour and markets (28).

The Land Act (Cap. 57:01), 1965 amended by the Land (Amendment) Act, 2003
- The Act governs three types of land: public land, private land and customary land.
- Section 2 of the Land Amendment Act introduced a new definition of a “person who is not a citizen of Malawi”:
- Section 5(1) restricts the Minister’s power to make a grant of any public land or any customary land to any person who is not a citizen of Malawi.
- Sections 24B, 24C, 24D and 24E were added to introduce restrictions on the grant of private land to any person who is not a citizen of Malawi. However, the law provides a leeway for investors to acquire large tracts of land “for reasons fully explained in writing accompanying the application for the registration of the grant”.    
- Section 40 on proof of citizenship of Malawi.

The Registered Land Act, 1967, Cap. 58:01, amended by the Registered Land Amendment Act 1970 and the Adjudication of Title Act 1971:
- Established a complete code of property law, which provides the machinery for registration as well as all that is considered necessary for the practical needs of land owners in regard to security and proof of title, and the creating and transfer of interest in land. It replaced the provisions of the English land law applicable to unregistered land.
- The act specifically provides for the respective rights and remedies of the borrower and lender, and of the lessor and lessee. The ownership is not an estate in land but is absolute ownership, resulting in the creation of registered proprietors of land.
- The provisions contained in Section 24 and the rights of the proprietor set out in Section 25 make the register the final and only proof of title and introduce the indefeasibility of title. The state accepts responsibility for the validity of transactions, which are effected by making an entry in the register, and only by this means.
- The Act became operational in 1972 when the first land registry was opened in Lilongwe to deal primarily with land titles in the Lilongwe Land Development Programme area. This area covered over a million acres of land held under customary tenure. At the end of 1981, over one quarter of the area was registered under the provisions of the Registered Land Act. (17)

The Adjudication of Title Act, 1971, Cap. 58:05 as amended by Act. 26 of 1988
- It provides for the adjudication of rights and interests in land, other than customary land, and enables such adjudicated titles to be entered in the land register. The adjudication of such documentary titles over land, not being customary land, is a part of the process of the conversion from deeds registration to registration of titles (17).

The Customary Land Development Act, 1967, Cap. 59:01 as last amended by Act No. 26 of 1988
- The Act is almost identical to the Adjudication of Title Act, except for the appointment and functions of the land committees. Further, the word “allocation” is used in substitution for “adjudication” in order to emphasize the redistributive rather than the adjudicative aspect of the proceedings. The emphasis is also on development, as the title of the act indicates, rather than adjudication. The act gives full power for the redistribution of land, but in practice the allocation process is based on the land, which was previously used under custom (17).

The Local Land Boards Act, 1967, Cap. 59:02:
- Intends to protect the landowners and also the land from dealings, which may adversely affect its use.
- At present there is only one local land board in Malawi. This deals with all land matters arising within the Lilongwe Land Development Programme under the Customary Land Development Act, including applications to change the family representative, boundary disputes, complaints about non-authorized cultivation of family land, and inspection of newly completed demarcation maps. (17)

- Since 2002 efforts have been initiated to develop a new Land Act based on a new land policy but it has not yet been enacted and the pace of reform has been slower than expected.

Policies/Institutional mechanisms enforcing or preventing women’s land rights

 

The National Land Policy, approved by the Cabinet and Parliament in 2002 recognizes the following types of tenure:
- Government land, acquired by the government or agencies of the government for specific national purposes;
- Public land, land held in trust and managed by the government or Traditional Authorities;
- Private land, that is, all land that is exclusively owned, held or occupied under freehold tenure, and customary land allocated to a clearly defined community, corporation, institution, clan, family or individual and used under customary law (13). The policy clarifies that “holding land in trust for citizens does not make a Headperson, Chief, or any public official the owner of the land.” (13)

The policy also seeks to set up customary land committees “headed by the Headperson and composed of three recognized and respected community elders at least one being a woman who will be elected in accordance with tradition to serve as members”. In addition, each district will have a Traditional Land Clerk “trained in land tenure issues to maintain a record of land transactions occurring within the Traditional Authority area” (18)

The National Land Policy of 2002 highlights the need to increase women’s access to land by recognizing that “more often than not, the rights of women, children and the disabled are denied on the basis of customs and traditions that are no longer relevant, or they are totally disregarded due to prejudice and lack of effective representation. This being so and in view of the effects of increasing land pressure due to population as well as the devastating effects of HIV/AIDS pandemic, a clear policy on gender access and the rights of children and the disabled should always be considered in policy planning and implementation strategies” (13). However, the policy allows for the name of the head of a family to be registered as the proprietor of family land, resulting in men’s names being recorded with a likely loss to women and young men (18).

The 2000-2005 Gender Policy of the Ministry of Gender, Child Welfare and Community Services promoted non-discriminatory cultural practices against women’s property rights, including land, and worked to promote the development and implementation of gender responsive Agriculture Policies and actions including lobby for increased access to and control of land by women and men in both matrilineal and patrilineal systems (2).

The Ministry of Gender, Youth and Community Services is the gender machinery mandated to spearhead the formulation, implementation, coordination, monitoring and evaluation of the gender policy. Furthermore, the Ministry oversees the mainstreaming of gender in all development policies, programmes, projects and activities and provides technical backstopping services in gender to all its stakeholders (19).

In 2001, the Law Commission on Gender and the Law was established to review discriminatory laws and propose amendment. Following the proposals of the Commission, the dispossession of surviving spouses and children was made a criminal offence (12).

A Special Law Commission was set up in 2003 to review all land-related laws and to conduct a further series of consultative workshops with civil society. The Special Commission has recommended having only two types of land, private and public; formerly customary land that becomes titled will be private, and any unallocated customary or chiefdom land, such as graveyards, grazing areas, etc., will be a form of public land (18), but the land-related laws have not been amended until now.

The Malawi Law Commission has also proposed a new bill to make provision for marriage, divorce and family relations (29).
- The Act would govern all four types of marriage: a) civil, b) customary, c) religious and d) marriage by repute or permanent cohabitation and all would have the same legal status.
- The Commission proposes to address a number gender-related issues of customary and statutory marriages: customary marriages may be polygamous and favour men. Most women are unaware that the current laws create different rights and obligations for different marriages which restricts their ability to make informed choices on the type of marriage they want to enter into.

The Law Commission has also proposed a new Gender Equality Bill to promote gender equality, equal integration, influence, empowerment, dignity and opportunities, for men and women in all functions of society; to prohibit and provide redress for sex discrimination, harmful practices and sexual harassment; to provide for public awareness on the promotion of gender equality; and to provide for connected matters (28).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography