By Alfred Chauwa
Blantyre – The High Court’s Constitutional Court in Blantyre is expected to deliver judgment tomorrow in a high-profile case challenging provisions of the _Land (Amendment) Act_ and _Customary Land (Amendment) Act_.
Pacific Limited, a private company, petitioned the Court to invalidate sections of the amendments, arguing they are unconstitutional and discriminatory.
The company contends that the laws unfairly restrict property rights, particularly for non-citizens, and introduce vague definitions of “indigenous Malawian.”
Key Concerns Raised About the Amendments
Legal experts and petitioners have flagged several negative aspects in the amendments:
1. Vague and discriminatory definitions
The Bill introduces the term “indigenous Malawian” without clear, objective criteria. Critics argue this creates room for arbitrary interpretation and risks unequal treatment before the law, contrary to Section 20 of the Constitution.
2. Retroactive effect on existing titles
The amendments do not provide clear transitional protections for people and companies who acquired leasehold and freehold titles lawfully under the previous law. This creates uncertainty for banks, investors, and homeowners who use land as collateral.
3. Risk to investment and financial stability
By making registered titles potentially unstable, the law could discourage both local and foreign investment. Lenders may hesitate to accept land as security, which could slow down housing, agriculture, and commercial projects that drive jobs.
4. Lack of clarity on dispute resolution
The Bill does not set out clear mechanisms for resolving conflicts that will arise from the new ownership restrictions. This is likely to increase land disputes and burden an already stretched judiciary.
5. Concerns over rushed consultation
Stakeholders including civil society and traditional leaders had previously criticized the 2016 land laws as rushed. Opponents say some amendments repeat that mistake by not fully addressing concerns about clarity, fairness, and proportionality.
Attorney General (AG) Frank Mbeta, assisted by lawyers Neverson Chisiza and Francis MacJessie, is defending the legislation on behalf of the Ministry of Lands.
The State maintains that the amendments were enacted through a transparent process following consultations with stakeholders, including rural communities, traditional leaders, and civil society. The AG argues the laws are proportional and necessary to address historical imbalances in land ownership.
Pacific Limited is represented by Senior Counsel Modecai Msisha and Bright Theu. The company argues that the amendments violate constitutional guarantees of equality, property rights, and economic freedom, and could undermine investment and financial stability.
Court records show that witnesses from both sides were cross-examined earlier this year, including Pacific Limited’s Grant Chimenya and the State’s Yohane Dzowa, a lawyer formerly with the Ministry of Lands and now deputy director in the AG’s Chambers.
Justices Jabbar Alide, Chimwemwe Kamowa, and Dick Sankhulani presided over the hearings and adjourned proceedings pending delivery of this judgment.
The ruling is expected to have significant implications for land ownership, investment, and economic policy in Malawi.
