In pre-colonial times, land belonged to the African communities that occupied it, and their members were free to use it in accordance with local customary law.
In much of Malawi, the right of land ownership in pre-colonial times belonged under customary law to the African communities that occupied it.
In 1902, the Parliament of the United Kingdom enacted the British Central Africa Order, which provided that English Law (including land law) would apply generally in the British Central Africa Protectorate, and that the Crown had sovereignty over all the land in the protectorate, which was held by others as its tenants.
[1] After 1860, the area that is now southern Malawi suffered insecurity through warfare and slave raiding: this led to the widespread abandonment fertile land.
Local chiefs tried to gain protection from European companies and settlers who had entered the area from the 1860s by granting them the right to cultivate this abandoned, insecure land.
Eugene Sharrer claimed to have acquired 363,034 acres, and he had attempted to induce chiefs to give up their sovereign rights: he also possibly intended to form his own Chartered company.
Protected Africans retained their internal sovereignty, and were only subject to Crown control if, and to the extent, agreed on in treaties and concessions.
The mere proclamation of a protectorate did not give the Crown property in its land or minerals, unless the agreements with African rulers so provided.
Secondly, that the Crown was entitled to investigate whether any earlier sales or transfers were valid and, if they were, to issue a Certificate of Claim (in effect a registration of freehold title) in the land to the new owners.
However, 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 the validity of the certificates, ruling that that title arose from a grant by the Crown's representative, not from any agreements made by the chiefs.
Failing this, he or an assistant sought confirmation that the chiefs named in agreements had agreed to sell the land and had received a fair return for the sale.
In addition, most Certificates of Claim included a non-disturbance clause providing that existing African villages and planted areas were not to be disturbed without consent from the protectorate government.
[13] The non-disturbance clauses were largely ineffective, firstly because the landowners routinely ignored them with impunity, secondly because the land occupied by Africans at the date of the certificate was not recorded and thirdly, the practice of shifting cultivation meant that much of what Johnston thought was unoccupied or waste land near villages was temporarily out of use and resting under local variants of the Chitemene system that is still employed in parts of Zambia.
This situation was not finally resolved until the colonial administration's Natives on Private Estates Ordinance 1928 removed the distinction between descendants of original residents and others by abolishing non-disturbance clauses.
In 1904, he received powers to reserve areas of Crown Land for the African people under the Native Locations Ordinance, 1904.
His successor as governor from 1911 to 1913, William Manning, who had previously served in the protectorate from 1893 to 1902, was more sympathetic to African farmers, and opposed moving them into minimal reserves to clear land for European settlers.
Its report opposed formal reserves, but recommended a calculation of what land should be provided for present and future African subsistence agriculture and making much of the rest available for European settlement.
The 1936 Order recognised that Africans could occupy and use Native Trust Land as a matter of right, but no other racial group in the protectorate was similarly entitled.
The Governor could, however, grant a right of occupancy of Native Trust land to a member of any racial group, normally as a lessee.