‘We will be homeless’: Area 26 residents push Mutharika to stop eviction without compensation

Residents of Area 26 in Lilongwe, Malawi, are embroiled in a protracted land dispute with developer GM Properties Limited, who are allegedly proceeding with evictions despite a High Court order mandating prior compensation. Over 18 months ago, Justice Howard Pemba of the High Court ruled that compensation, based on current valuations, must be paid to affected families before any eviction. This ruling aligns with Section 28(2) of the Constitution of Malawi and the Lands Acquisition and Compensation Act, which safeguard property rights and require prompt and adequate compensation for deprivation of property. The developer's reported attempt to secure a parallel eviction order from a different court, while ignoring the existing Lilongwe judgment, raises serious concerns about judicial integrity and the protection of vulnerable communities' land rights.

A significant land dispute in Area 26, Lilongwe, has brought to the forefront critical issues surrounding property rights, compensation, and the enforcement of judicial orders in Malawi. Residents are appealing to President Arthur Peter Mutharika for intervention, alleging that GM Properties Limited is pushing ahead with evictions without fulfilling a High Court mandate for prior compensation. This situation underscores the persistent challenges in land governance and the protection of customary land rights against commercial development pressures in the country.

The core of the conflict lies in the developer's alleged non-compliance with a High Court ruling issued by Justice Howard Pemba, which explicitly required the payment of compensation to affected families before their removal from the land. The residents, many of whom claim ancestral ties to the area, face the prospect of homelessness and destitution, highlighting the urgent need for adherence to legal processes and constitutional safeguards. This article delves into the legal framework governing land acquisition and compensation in Malawi, analyzes the implications of the alleged disregard for court orders, and considers the broader ramifications for property rights and judicial enforcement.

Malawi's land tenure system is a hybrid, historically comprising customary, private, and public land categories, with recent reforms under the Land Act, 2016 (No. 16 of 2016), and the Customary Land Act, 2016 (No. 19 of 2016), aiming to formalize customary land rights and enhance tenure security. Central to property rights in Malawi is Section 28(2) of the Constitution, which prohibits the arbitrary deprivation of property, and Section 44(3), which permits expropriation only for public utility with adequate notification and appropriate compensation, subject to judicial appeal.

The legislative framework for land acquisition and compensation is primarily governed by the Lands Acquisition and Compensation Act (Chapter 58:04), as amended by the Lands Acquisition (Amendment) Act, 2017 (No. 9 of 2017). This Act outlines procedures for compulsory acquisition, preliminary investigations, notices of intention to acquire, and the assessment and payment of compensation. Crucially, it stipulates that compensation must be appropriate and paid in a lump sum, considering factors such as loss of land, structures, business, and relocation costs. The principle of "compensation before eviction" is therefore deeply embedded in Malawian law, reflecting a commitment to protecting citizens from displacement without due process and adequate redress.

The dispute in Area 26, Lilongwe, exemplifies the tension between development interests and the protection of community land rights. Justice Howard Pemba of the High Court in Lilongwe, in a ruling over 18 months ago, affirmed the legal requirement for GM Properties Limited to compensate affected families before proceeding with any evictions. The court found that while GM Properties had lawfully acquired the land from the Ministry of Lands, the villagers were entitled to full compensation based on current valuations prior to their removal. This judgment is a direct application of constitutional provisions and the Lands Acquisition and Compensation Act, which mandate "prompt and adequate compensation" for any deprivation of property.

However, residents and local authorities, including former Lilongwe District Lands Officer James Mwenda, assert that no compensation has been paid, and the Lilongwe District Council lacks records to support GM Properties' claims of prior compensation. This alleged failure to comply with a binding High Court order is a grave concern. Legal experts, such as Benedicto Kondowe, emphasize that a High Court order remains binding until it is overturned on appeal, and any disregard for such an order risks contempt of court.

The situation is further complicated by reports that GM Properties is seeking a separate eviction order from a court in Blantyre, seemingly bypassing the unfulfilled Lilongwe High Court judgment. This raises questions about forum shopping and the potential for conflicting judicial directives, undermining the rule of law and exacerbating the vulnerability of the Area 26 residents. The Land Act, 2016, and the Customary Land Act, 2016, while intended to strengthen land governance, have faced implementation challenges, with concerns about potential land grabs and the need for more robust enforcement mechanisms. The current scenario tests the efficacy of these reforms and the judiciary's ability to protect fundamental rights against powerful private interests.

Comparative to other African jurisdictions, the principle of compensation before eviction is widely recognized, often enshrined in constitutional provisions and land legislation. For instance, many countries have adopted similar frameworks to protect citizens from forced evictions without due process and fair compensation, reflecting international human rights standards. The ongoing challenge, as seen in Malawi, often lies in the practical implementation and enforcement of these protective laws, particularly when dealing with large-scale development projects and the complexities of customary land tenure.

The Area 26 land dispute in Lilongwe serves as a critical test case for Malawi's commitment to upholding constitutional property rights and the rule of law. The High Court's clear directive for compensation prior to eviction, grounded in the Constitution and the Lands Acquisition and Compensation Act, must be respected and enforced. The alleged non-compliance by GM Properties Limited and the reported pursuit of parallel legal avenues pose a significant threat to judicial authority and the stability of land tenure for vulnerable communities.

Practitioners in Malawi's legal landscape must remain vigilant in advocating for the strict adherence to court orders and the robust enforcement of compensation requirements in land acquisition matters. This case highlights the imperative for developers to engage transparently and ethically with affected communities and for the government to ensure that land reforms translate into tangible protections for its citizens. The appeal to the President, Ministry of Lands, and Attorney General underscores the need for high-level intervention to safeguard justice and prevent the displacement of families without the legally mandated and humane provision of compensation. The resolution of this dispute will undoubtedly set a precedent for future land development projects and the protection of property rights across Malawi.