The Abrahams Commission (also known the Land Commission) was a commission appointed by the Nyasaland government in 1946 to inquire into land issues in Nyasaland. This followed riots and disturbances by tenants on European-owned estates in Blantyre and Cholo districts in 1943 and 1945. The commission had only one member, Sir Sidney Abrahams, a Privy Counsellor and lawyer, the former Attorney General of the Gold Coast, Zanzibar and Uganda, and the former Chief Justice, first of Uganda and then Ceylon. There had been previous reviews to consider the uneven distribution of land between Africans and European, the shortage of land for subsistence farming and the position of tenants on private estates. These included the Jackson Land Commission in 1920, the Ormsby-Gore Commission on East Africa in 1924 and, most recently, the Bell Commission on the Financial Position and Development of Nyasaland in 1938, but none of these had provided a permanent solution. Abrahams proposed that the Nyasaland government should purchase all unused or under-utilised freehold land on European-owned estates, which would then become Crown land, available to African farmers. The Africans on estates were to be offered the choice of remaining on their current estate as paid workers or tenants, or of moving to Crown land. These proposals were not implemented in full until 1952. The report of the Abrahams Commission divided opinion. Africans were generally in favour of its proposals, as were both the governors in post from 1942 to 1947, Edmund Richards (who had proposed the establishment of a Land Commission), and the incoming governor, Geoffrey Colby. Estate owners and managers were strongly against it, and many European settlers bitterly attacked it.
Origins of the Land Issue 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. Community leaders could allow community members to use specified areas of communal land and to retain it for as long as it was in productive use, but they did not usually grant its use to outsiders. Neither the leaders nor the current members of a community could alienate its land, which they held in trust for future generations.
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. The chiefs had no understanding of English concepts of land tenure and may have intended only to grant a right to cultivate vacant land in exchange for protection. 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.
Harry Johnston was appointed as the first Commissioner of the British Central Africa Protectorate in July 1891. Johnston did not consider that the Crown had a general claim to sovereignty over any land unless it had been expressly transferred by cession. Without sovereignty, the Crown had no right to alienate that land. However, some treaties made after July 1891 did cede sovereignty over land to the crown, but also granted the communities involved in the transfer the right to retain any land that they actually occupied as Crown tenants, leaving any vacant land free for the Crown to alienate as it saw fit. Johnston also accepted that the treaties and agreements made before the start of the protectorate might be evidence of sales of land. Even though he accepted that the land belonged to its African communities, not the chiefs, Johnston proposed the legal fiction that the people had given their chiefs the right to sell it. This interpretation validated the chiefs’ sales and grants of unused land to Europeans. He also claimed that he was entitled to investigate whether these sales were valid and, if they were, to issue Certificates of Claim (in effect a registration of freehold title over the land) to the new owners.
Johnston stated that a review of land claims was necessary because the proclamation of the protectorate had been followed by a wholesale land grab, with huge areas of land bought for trivial sums and many claims overlapping or requiring adjustment. He sought confirmation that the chiefs who sold the land and had received a fair price, but his estimates of land value were very low, from a halfpenny an acre up to a maximum of threepence an acre. The existing African villages and farms were exempted from these sales, and the villagers could retain their homes and fields under “non-disturbance” clauses in most Certificates of Claim.
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. The court did, however, rule that many aspects of the agreements made by the chiefs were unfair and one-sided, favouring the European parties.
In total, 59 Certificates of Claim to land rights were registered, mostly between 1892 and 1894, covering an area of 3.7 million acres, almost 1.5 million hectares or 15% of the total land area of the Protectorate. This included 2.7 million acres, over 1 million hectares, in the North Nyasa District, which the British South Africa Company had acquired because of its mineral potential, and very little of which was ever turned into plantations or estates. Most of the remaining alienated land, some 867,000 acres, or over 350,000 hectares of estates, included much of the best arable lands in the Shire Highlands, the most densely populated part of the country.
Development of the Land Issue Customary law had little legal status in the early colonial period, as in 1902 the Parliament of the United Kingdom provided that English Law would generally apply in the British Central Africa Protectorate, and that the Crown had sovereignty over all of the land in the protectorate. Landowners had a title to their land by virtue of a grant from the Crown, but any land which had not been so granted remained as Crown Land, which could be alienated in the future. Under this doctrine, African communities had no existing legal title to the land they occupied, and the colonial administration was free to grant away title to such land until 1936. At that time, it was recognised that much of the remaining Crown Land was unsuitable to be converted into estates and that there were few new European settlers and consequently little demand from new estates. The needs of African communities were given greater prominence and any further conversion of Crown Land to freehold was prohibited. In addition, from 1916, governors of Nyasaland had been able to reserve areas of Crown Land for the African people inhabiting it. These areas were termed “Native Trust Land”, to be held in trust by the British Secretary of State for the Colonies for the benefit of those African communities. The area of Native Trust Land was about 2.5 million acres. From 1936, Native Authorities appointed under the policy of Indirect Rule from among traditional chiefs and appointed headmen were given powers to allocate Trust Land to their communities in accordance with customary law.
John Chilembwe (1871–1915) was a Baptist minister, who returned to Nyasaland after education at the Virginia Theological Seminary and College, (now Virginia University of Lynchburg) in 1900 and founded the Providence Industrial Mission. 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. 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. He planned to attack government centres and European estates in the Shire Highlands in January 1915. 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. For many years after the initial shock of the Chilembwe uprising, both the Nyasaland and British governments did little to deal with the problem of land grievances, despite recognising that this problem existed. 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.
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.
Another aim of the 1920 Land Commission was to promote European agriculture by curbing the growing of economic crops by Africans where this competed with Europeans. 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. The remainder was to become available to form small to medium size European plantations. Even though large areas of the original European estates were underdeveloped or completely unused, their owners were unwilling to sell surplus land to new European farmers except for unrealistically high prices, so the commission looked to 700,000 acres of Crown land that it considered was potentially available to create future estates for these expected incomers, mainly outside the Shire Highlands, which contained many existing estates. The commission also estimated that the African population of Nyasaland would double by 1950, but it considered that the very low estimate that 3.2 million acres of cultivable land, with appropriate pasturage, would be sufficient to feed this anticipated future population.