[2] In pre-colonial times, the rules of customary law in much of what is today Malawi attributed the ownership of land to the African communities that occupied it.
[3] In the period before a British protectorate was proclaimed 1891, the African Lakes Company and several individuals, notably Eugene Sharrer, Alexander Low Bruce (the son-in-law of David Livingstone) and John Buchanan and his brothers, claimed that they had made treaties of protection or purchase agreements with various chiefs, under which they had become owners of large areas of land.
In addition, documentation was often lacking or ambiguous and, in the case of purchases, the buyers gave only trivial quantities of goods in exchange for large landholdings.
[7] When the legality of the Certificates of Claim system was challenged in 1903 on the basis that the agreements made by the chiefs breached the rights of their community members, the Appeals Court upheld their validity.
[13] Initially, Chilembwe avoided direct criticism of the colonial authorities, but after 1913 he had become more politically militant and openly criticised the government over African land rights and the conditions of tenants on European-owned estates.
[14] The outbreak and effects of the First World War was the key factor in moving him from vocal criticism to planning an uprising, which he believed would achieve the deliverance of his people.
The plan failed almost completely; Chilembwe was killed and many of his followers were executed after summary trials under Martial law, but the uprising was a severe blow to the colonial authorities.
Generally, the supposed needs of the European estate owners were given priority and legislation in 1917, 1928 and 1952 was overtly race-based, as it involved using the categories “Native” or “African” to determine legal rights.
[17] The Land Commission of 1920 sought to address increasing African landlessness and recommended strict observance of the “non-disturbance” clauses contained in the Certificates of Claim.
However, these clauses were largely ineffective, because landowners routinely ignored them and because the practice of shifting cultivation meant that the land occupied by tenants had changed since the time the certificate were issued.
It also aimed to restrict the amount of land reserved for those Africans living outside the estates to only as much as was currently sufficient for their use, with some allowance for future needs.
From then on, the dominant European voices in Nyasaland were those of its colonial civil servants, unlike in the Rhodesias, where the permanent settlers were predominant.
The main causes of discontent among tenants on private estates were their lack of security of tenure and the demands made on them to provide significant amounts labour in lieu of rent under the system known as thangata to which they were subject.
Instead, legislation passed in Nyasaland in 1928, the Natives on Private Estates Ordinance 1928, provided that each African resident in an estate was entitled to a hut site and a plot of cultivable land, in return for which they had either to work for the landowner for wages or in lieu of rent, or to grow economic crops to give the owner in lieu of rent.
This measure failed in practice as it did not provide a permanent solution satisfactory either to estate owners or tenants, particularly during the worldwide economic depression of the early 1930s.
[23] The 1938 Bell Report noted that many estate owners had little need of tenants’ labour and could not pay them wages or purchase the crops they produced.
Smallholders living on Native Trust Land often suffered overcrowding, made worse by new methods of cultivation and soil conservation advocated by the colonial Agricultural Department and the eviction of former estate tenants.
Two years later the same difficulty arose in the densely populated Cholo District, two-thirds of whose land constituted private estates.
African political consciousness was growing and unused and under-used estate land could no longer be justified by an appeal to dubious 19th century claims.
[28] Abrahams spent around 10 weeks in Nyasaland in 1946, taking evidence from colonial officials, estate owners and settlers, missionaries, African politicians and chiefs, and visiting almost all parts of the protectorate.
In addition, many European landowners either acted illegally towards tenants or exercised their rights harshly and without consideration of customary practices.
Its original official members co-opted six representatives of the estate owners and six missionaries, but no Africans, although it took evidence from several chiefs.
[34] The committee's official members expected that the major estate owners, whose representatives they had co-opted, would be willing to sell parts of their land voluntarily.
However, in 1945, the company announced it wished to sell its main estate, and the governor felt it was necessary to negotiate to buy it, even though it had been badly managed and deforested.
Bruce Estates wanted a price sufficient to wipe out all its past losses since 1925, but this was considered excessive, and in 1947 the company tried to sell its land to a private buyer, but the sale fell through.
[41] Following a serious famine in 1949, Geoffrey Colby, the Governor of Nyasaland from 1948 to 1956, attempted to get this company to sell its under-used land to the government for resettlement.
By ruling compulsion out, he gave unintended encouragement to the British Central Africa Company's plans to retain its estates.
[42] In 1955, the Nyasaland government agreed to purchase almost 36,470 acres in Cholo District with 24,600 residents from the British Central Africa Company for resettlement.
[43] It was only in 1962, when independence was clearly in prospect, that the company accepted the need to sell its surplus land, retaining only its most profitable assets.
natives feel they have a strong customary right to settle their families in their home village, while on the other hand the landlord would do anything to contest that he was legally obliged to find accommodation on his land for the descendants of his tenants.”[45] Abrahams reached the conclusion that the only solution was to end the status of resident native, leaving him free to quit the estate or to stay there on terms satisfactory both to himself and the landlord, substituting contractual rights for statutory ones.