The National Land Policy Development under the New Constitutional Dispensation

1. Swaziland The National Land Policy Development under the New Constitutional Dispensation Decision Makers Meeting : Good Administration of Lands Presenter: Albert M. Lukhele Date: 07 December 2006 Windhoek

2. Preamble • Geographical Background • Background on Land and Land Management • The draft Land Policy Document • Land related issues in the Constitution • Constitution and the Draft NLP • Land Legislation • Challenges • Recommendations • Conclusion

3. Introduction SWAZILND – Geographical Background RSA HV – High Veld MV – Middle Veld LV – Low Veld LP – Lubombo Plateau MV LP SIZE: 17 363 km2 Population : +/- 1 000 000 Altitude: 100m to 1800m above sea Level. HV LV RSA

4. Background on land and Land Management • From colonial land seizure, land was bought back by the Swazis under the leadership of His majesty King Sobhuza II. • Land Tenure • Swazi Nation Land (SNL) represented 30% • Title Deed Land (TDL) represented 70% • The imbalance on land allocation resulted on a majority of indigenous Swazis becoming landless, hence the purchase programme.

5. National Land Policy (Draft Document) • In line with the NDS the Technical committee was set up by government in 1997 for the drafting process • In 1999 the document got cabinet approval and referred to the Head of State. • The Advisory council to His Majesty recommended that it waits the finalisation of the Constitution which was in its development process.

6. National Land Policy (Draft Document) cont. • Vision • The guiding vision for this Policy Document is to maximise benefits from land to the entire society on a sustainable basis. • Objectives • An improved access to land and secure tenure, • Encouraging the rational and sustainable land use, • Improving productivity, income and living condition and alleviate poverty, • Reduction of land related conflicts, • Developing an efficient and effective system of land administration. • Principles • Access to land for all citizens, • Integration of this NLP with the vision and goals of the NDS. • Institutional Coherence/ alignment of land related agencies. • Community participation, accountability and transparency in land administration. • Gender equity • A process of enabling land and property market to work properly • Optimal sustainable use of land resources to facilitate food security.

7. Land Related Issues in the Constitution • The National constitution came into force on the 8th of February 2006 • Section 211 (1) From the date of commencement of this Constitution, all land (including any existing concessions) in Swaziland save privately held titled-deed land, shall continue to vest in iNgwenyama in Trust for Swazi Nation as it vested on the 12th April, 1973. • 3) “ a Person shall not be deprived of any land without due process of law and where a person is deprived, that person shall be entitled to prompt and adequate compensation for any improvement on that land loss consequent upon that deprivation unless otherwise provided by law”. • Section 20 (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law • (2) For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age and disability. • (3) For the purpose of this section “discriminate” means to give different treatment to different persons attributable only or mainly to their respective description by gender, race, colour, ethnic origin, tribe birth creed or religion, or social or economic standing, political opinion, age and disability.

8. Land Related Issues in the Constitution (Cont.) • 4) Subject to provisions of subsection (5) Parliament shall not be competent to enact a law that is discriminatory either of itself or in its effect. • (5) Nothing in this section shall prevent Parliament from enacting laws that are necessary for implementing policies and programmes aimed at redressing social, economic or educational or other imbalances in the society. • 211 (2) Save as may be required by the exigencies of any particular situation a citizen of Swaziland, without regard to gender, shall have equal access to land for normal domestic purposes. Section 212 (1) “There shall be established a Land Management Board (hereinafter referred to as the Board)…” • (4) The board is responsible for the overall management and for the regulation of any right or interest in land, whether urban or rural or vesting to iNgwenyama in trust for the Swazi Nation.

9. The Constitution and the draft NLP • The Draft NLP suggested the formation of a LMA reporting to the PM and formed by an Act of Parliament • The Constitution establishes the LMB which is accountable to Ingwenyama • One guiding principle of the NLP is promotion of gender equity, which the constitution clearly discourages land access and allocation based on discriminatory principles. • The LMB has a duty to come with Land Tenure Reforms which will improve better use of land, enhancing food security, increase land productivity and poverty alleviation

10. Land legislations • Access to land under the traditional institutions has no laid down policy or legislation to give certainty and predictability (on SNL) • The Land Speculation Control Act of 1972 and Deeds Registry Act of 1968 Section 16 does not allow registration of immovable property in the name of woman married in community of property • Acquisition of Property Act 10 of 1961 provides for compensation for property acquired under this Act (TDL) • The government has embarked on a study on the extension of 99-Year Lease Concept on SNL.

11. Challenges • 1 Haphazard land use and development. • 2. Uncoordinated development leading to potential conflicts. This is witnessed in the peri-urban settlements, places like Logoba in Manzini and Mpolonjeni in Mbabane. • 3. Tendency of focussing in your own sector without regard to national interests and this is the trend in the developments that are taking place today. This tendency has created protectionist behaviours amongst sectors and individuals. • 4. The promotion of certain sectors at the expense of other sectors solely on the basis of who is piloting that development. This is due to lack of consultations and feasibility studies. • 5. The setting up of certain developments and installations in certain areas without any attention being paid to the suitability or productivity of the land. • 6. Inefficient and speculative use of land. There is a tendency to check land and buy it for no particular use and the main aim being speculation. A person buys a farm with no intention of farming and later on subdivides it and sells it. • 7. Mushrooming of real estate agents without the necessary qualifications and as a result land valuation has no meaning or creates an unrealistic land market and land values. • 9. Under-utilisation and misuse of farmland in the urban and rural areas leading to fallow land and erosion. • 10. Mushrooming of squatter settlements in urban and peri-urban areas

12. RECOMMENDATION • 1. Create a new vision for land governance in Swaziland. • 2. Streamline the institutional structure for land administration and management. Since the terms of reference for the LMB is to regulates its own functions then, the board needs to be specialist in Economics of Land. • 3. Emphasise the issue of optional land use. The initiatives that government has already piloted needs to be formalised and made operational, e.g. extension of the 99-year lease on SNL. • 5. The policy should enshrine the principle that peace, development, environmental protection and respect for human rights and fundamental freedoms are interdependent and that environmental degradation should be prevented. • 6. The issue of access to land for Shelter, Business and farming be held in esteem in urban and in rural areas. • 7. Reforms on the current land tenure arrangements • 8. Procedures for land allocation for the various developments including basis for allocation by defining the role and power of the structures involved. • 9. Legal support and enforcement of the policy. • 10. Procedures and guideline to for land conversion and land use changes. • 11. Need for zoning land into different uses. • 12. Government should set up procedures and guideline to discourage inefficient land use. • 13. The issue of eliminating land speculation. One of the possible ways to check on this is the introduction of the Capital Gain’s Tax. • Provision of land for commercial and industrial development in rural areas especially on Swazi nation land.

13. Conclusion • The Government has taken the initiative of drafting the NLP under NDS • Government has prepared funding for further consultation and finalisation of the draft. • The policy will be backed by relevant legislation, which will be part of the main national legislative reform process • Recommended that government put in place an effective structure that will ensure proper management and administration of equitable land use, land transaction, land allocation and distribution and land protection against overgrazing and unplanned settlement.

14. End • Thank You Ladies and Gentlemen Questions and Comments