Dear participants,

For the second week of discussion starting on Monday (5h July) we will move the conversation back to the plenary space. The country pages will remain open over the week as 'read only’. 

Let us know your thoughts! This week we will talk about:

1. How customary law is adapting to protect women's land rights?

2. What good practices exist in liking statutory and customary institutions?

3. If SADC was to develop a policy on land governance, what would be your recommendations so that it recognises customary law and institutions?

We received one response from Eswatini. Responses have been anonymised.

Land Portal Online Discussion

Customary law and institutions - Protecting or undermining community land rights in Southern Africa?

Eswatini

Google form returns summarised

Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

• 50%

Data source

• None supplied

Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?

• Yes. Swazi Nation Land is under the leadership of the chiefs and you don't pay for it like the commercial category land

Is there national legislation governing the role of traditional leadership institutions?

• Yes. We have what we call kukhonta form of owning a land under Swazi Nation Land 

Status of customary law

• There are legally recognised traditional courts

Is traditional leadership hereditary?

• Yes

Are there instances when traditional leaders are locally elected by their community?

• Yes

Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

• Yes. Through depriving one’s estate or grabbing the land 

Can women assume traditional leadership positions?

• Yes

Do recognised traditional leaders receive salaries or stipends from the state?

• No

Can they legitimately impose levies or fines on communities they represent?

• Yes

How would you rank the political influence of traditional leadership institutions?

• [8] The Swazi Nation is under the leadership of the chiefs and if one doesn't respect them , the chiefs has powers to evict one.

What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

• They show you a land that you will build on and they have to bless the land , 'bless' as in to give you the go ahead

How is land inherited and passed down the generations?

• Through the family tree

Do customary law and institutions enable women to access land independently of men?

• Increasingly yes 

How would you rank the security of women's land rights under customary tenure systems in Eswatini

• [4] Most widowed women in the Kingdom of Eswatini are constantly grabbed of their land post death of their husband.

What role do traditional leaders and customary institutions play in mediating land related disputes?

They preside over the matter.

Which statement best describes customary institutions in the country under review?

• There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

General remarks and additional information

We are posting the responses received from our prediscussion survey for Botswana. Many thanks to those who contributed.

Land Portal Online Discussion

Customary law and institutions - Protecting or undermining community land rights in Southern Africa?

Botswana

Google form returns summarised

Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

• 70%

• 20%

Data source

• No source provided

• No source provided

Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?

• Yes. Botswana government established Land Boards inter 1970s and they took over the roles of land administration and distribution from Tribal Authorities in all jurisdictions. Tribal Authorities however still retain an important role as day to day land overseers.

• Yes

Is there national legislation governing the role of traditional leadership institutions?

• Yes

• Yes

Status of customary law

• It is legally recognised alongside statutory law

• It is legally recognised alongside statutory law

• There are legally recognised traditional courts

• There are legally recognised traditional courts

• There is a reliance on living customary law

Is traditional leadership hereditary?

• Yes

• Yes

Are there instances when traditional leaders are locally elected by their community?

• Yes

• Yes

Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

• No. We have not had such an incident yet

• Yes

Can women assume traditional leadership positions?

• Yes

• Yes

Do recognised traditional leaders receive salaries or stipends from the state?

• Yes

• No

Can they legitimately impose levies or fines on communities they represent?

• Yes

• No

How would you rank the political influence of traditional leadership institutions?

• [5]  The influence of Traditional leaders varies from one jurisdiction to another. It also depends on whether the traditional leader in question is head of a tribe ( paramount chief ) or village chief. In Botswana Traditional leaders are members of the second chamber of the National Assembly. This is the institution in which they provide an advisory role to Central government on all matters and aspects of customary law.

• [8]

What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

• Day to day oversight

• Son consejeros - they are advisers

How is land inherited and passed down the generations?

• This is done at family level and differs from tribe to tribe at time even from family to family. Traditional leaders have a key role of authentication of family decisions while Landboards deal with the change of ownership from one holder to the next.

• generacion a generacion - generation to generation

Do customary law and institutions enable women to access land independently of men?

• Increasingly yes

• Generally no

How would you rank the security of women's land rights under customary tenure systems in Botswana

• [6] While at the moment this right is legally protected it is still a very fragile area.

• [3]

What role do traditional leaders and customary institutions play in mediating land related disputes?

• They are the first point of entry in cases of conflicts. The Landboards will often refer the disputing parties to to traditional and customary institutions for mediation.

• No response

Which statement best describes customary institutions in the country under review?

• There are examples of both types of practice - accountable and responsive and corrupt and authoritarian

• They remain adaptive and downwardly accountable and responsive to the land needs and rights of communities

General remarks and additional information

Your questions need a bit of research and cannot be answered from the top of one's head as you suggest in the invitation. This is particularly the case for those of us who do not work in land administration from day to day. Anyway thanks

To be honest, I don't know how and what precipitated the codification of customary law in Lesotho (my time in Lesotho focussed more on urban land questions). Perhaps someone more knowledgeable than I can elucidate us, or I will dig a little deeper over the next few days. However, the effect of weakening customary tenure was one of the findings of the research undertaken by Quinlan in 1994 (can be found here). In Eswatini, we documented in detail the customary process for securing arable land. The intention was to prepare a standard guideline for use by chiefdom inner councils (who administer the process); it was not to be published or made widely available. Although the effort was appreciated, the final document only gave an outline of the process. The same reticence is perhaps one reason why the 2005 draft land policy remains just a draft?

In the background to our discussion protests erupt against the monarchy in Eswatini...

"In Botswana, Tribal Land is the main landholding class by area and number of persons affected and acknowledged by the Tribal Land Act, 1968. However, allocating lands has since been centralized into largely unelected boards reporting to the national government. Opportunities for villages to formalize their traditional rights to specific rangelands have also been undermined by legal provision for individuals to access these lands under common law leases. The legal provision does not exist for either Indigenous Peoples (San hunter-gatherers) or settled agro-pastoral communities to obtain collective certificates over shared lands, without forming commercial ranching syndicates."

Liz Alden Wily 29 May 2018

...........................................

On attaining self-rule on 30 September 1966, a sense of entitlement gathered pace. The elite cattle owners, some 12% of the population and owning 60% of the cattle, urged that the borehole sinking program be accelerated into the Kalahari sand areas, land of the Bushmen.

The Tribal Land Act of 1968 gave usufruct title to its customary residents, but not to non-Motswana people such as the Bushmen, the land still to be governed under customary law, but the chiefs and headmen replaced by elected land boards, who then were, with the consent of the minister, allowed to issue common law leases. This then led to the fencing and enclosure of the commons, the 1975 Tribal Land Grazing Policy empowering the land boards to cede communal grazing lands to cattle ranchers, extending the enclosures and leading to land degradation and increasing poverty.

In 1970 Land Boards were established under the Tribal Land Act (Cap. 32:02); the boards were vested with powers to distribute and allocate land to the Motswana Bantu. Only 12 tribal territories were created by the Act. The Bushmen and other groups were excluded, eking out a precarious living on territories marked out by ecological necessity. The Act was later amended by the Tribal Land (Amendment) Act 1993, which replaced ‘tribesman’ with the words ‘citizens of Botswana.’[ix]

In 1975 Sir Seretse Khama announced to the nation that the traditional tenure rights, where local grazing rights were the property of the tribes, were now radically altered by the Tribal Land Grazing Policy (TGLP). He announced three zonings: 1) commercial area, where individuals or groups would be accorded exclusive grazing rights in exchange for rents paid to the local authority; 2) communal area, being the current traditional lands; 3) reserve area, where large swatches of grazing land was set aside for future use by the poor. Land reserved for wildlife, freehold land and 25% of the land deemed ‘undecided’ was not demarcated. Apart from the Central Kalahari Game Reserve (CKGR), established for the survival of the hunting bands of Bushmen, the land was soon classified under three categories; but no land was awarded to the Bushmen.

.......................................................

"Because rights to hunt and gather are not recognized under customary or statutory law, the indigenous San people continue to be displaced by fenced ranches and relocated in settlements. The Tribal Land Act entrenched a fairly uniform system of Tswana land tenure. It did not accommodate other forms deviating from the Tswana patterns of landholding and use. The San are not the only minority marginalized in this way."

Martin Adams - Land tenure policy and practice in Botswana; Governance lessons for southern Africa. 2003.

Sean I wonder if you could reflect more on the consequences of the codification of customary law via the 'Laws of Lerotholi' in Lesotho. How did this codification take place?  Why did codification precipitate "a weakening of customary tenure, and a diminishing role  for the chiefs' in land matters?

Laurence Juma has observed that:

African customary law scholars have been preoccupied with finding points of convergence between two divergent paradigms instead of seeking to develop African customary law as a distinct legal tradition that espouses rules and supports institutions of its own kind.3 Arising from the push by post-colonial governments towards unified legal systems, scholars have seen their role as that of sanitizing customary law and redefining its principles to fit modes of western legal tradition—an approach that has rendered African customary law even more precarious.

Juma, L. (2011). "The laws of Lerotholi: role and status of codified rules of custom in the kingdom of Lesotho." Pace Int'l L. Rev. 23: 92.

Is there no place for codification of customary law? Is 'living customary law' clear about what is legitimate and what is not, or is it always the outcome of a consensual reasoning process which is tailored to the specific circumstances or matter at hand? All of which leads to bigger questions about how to make legal pluralism actually work.

Customary law and institutions: Comparative perspectives from Eswatini and Lesotho

Institutions – societal behaviour, norms, rules, laws, and structures – emerge, develop, and are shaped by the interaction of geography and history. This proposition may be illustrated by comparing and contrasting customary land law and institutions in Eswatini and Lesotho.

The Kingdom of Eswatini and the Kingdom of Lesotho are geographically similar in that they are both landlocked and relatively mountainous with good but often unreliable rainfall. They share similar historical backstories in pre-colonial times that forged their unitary national identifies; they were both 'protected' by Great Britain from Afrikaner expansionism; they both 'lost' land to South Africa when colonial borders were drawn; they both subsumed Roman-Dutch law to operate alongside customary law; and, at 'independence' around the same time, they both inherited similar constitutional models, systems of government, and institutions that recognised customary land tenure.

Evidently, there are many differences between the two Kingdoms. Lesotho is much larger but more mountainous, and Eswatini, smaller but less mountainous, has much more available arable land. This geographical circumstance is a direct cause of historical developments and possibly the main reason why customary land institutions in both countries are now somewhat different.

Agricultural land is what drew increasing numbers of foreigners to what was then Swaziland during the latter part of the 19th century. They found a monarchy willing to let Europeans settle and they were granted 'concessions' over large tracts of sparsely populated land in the highveld region. But matters soon got out of hand. Concessions covered the whole Swazi Nation, overlapped, disputes arose, and many concessionaires believed their lands rights were equivalent to full ownership. Order, of sorts, was restored when the colonial government intervened and partitioned the land into areas reserved for emaSwati and areas reserved for European settlement. The latter comprised about 65% of the land area, leaving the bulk of the population to subsists off the remainder.

In contrast, Lesotho, having comparatively much less arable land, attracted far fewer European settlers. The limited availability of arable land was also consequential in customary land tenure, institutional development, and the role of the chieftaincy in land matters.

Having lost so much land to both foreigners and neighbouring South Africa, it is not surprising that the 'land question' features prominently in Swazi political discourse. But gradually, through a buyback programme initiated by King Sobhuza, Swazi nation land – land held in trust by the Ngwenyama and King with powers delegated to chiefs to allocate, administer and manage the land according to customary law – has become the predominant form of tenure. At the same time, the monarchy and the ruling Dlamini clan, cemented its position over the Swazi nation by creating 'royal kraals' or 'princely chiefdoms' in these recovered lands and other sparsely populated areas.

In both Kingdoms, chiefs are the 'pivot' on which both Liswati and Basotho define their collective need for land and how rural communities govern, manage, and administer land use, and the principal task of the chief, working with a council of elders, is to allocate land to families who are, or will become, part of the community and chiefdom. The allocation is a usufructuary right, and in Eswatini widely recognised as being in perpetuity, inheritable, and secure, provided certain conditions are adhered to, principally allegiance to the chief and by extension to the monarchy.  The question of inheritance was less clearly established in Basotho custom, although it became so by inclusion into the customary 'Laws of Lerotholi'. This codification precipitated a weakening of customary tenure, and chiefs' diminishing role in land matters, exacerbated by the shortage of arable land to allocate. Consequently, Basotho chiefs became increasingly involved in managing communal grazing lands and the movements of livestock between winter and summer pastures. Over time and with development, the chieftainship in Lesotho became the "nexus of political contest" with ministerial government getting increasingly involved in rural affairs. The promotion of horticulture then led, by virtue of the 1979 Land Act, to increasing privatisation of land. The post-independent government sought to consolidate power in rural areas by expanding and affirming ministerial government to the exclusion of traditional authority.

Five years after independence, King Sobhuza suspended the constitution and ruled Swaziland by decree until 1978 when a traditional form of government called the Tinkhundla system was introduced. Local government in the Tinkhundla system has no jurisdiction over land matters, which remains the preserve of traditional authority, and central government remains confined to the administration of private, title deed land. A new constitution introduced in 2005 created a Land Management Board, appointed by the King, who are responsible for the overall management and regulation of any right or interest in all land. The 2009 draft land policy, and 2013 Land Bill, are intended to bring clarity to institutional roles and to facilitate tenure reforms that encourage, among other things, the commercialisation of agricultural land.  Because the land policy and the Land Bill affect customary law, they were referred to the Council of Chiefs, a new body created by the constitution, and this is probably where both the draft policy and law remain.

In both Kingdoms we can see that traditional authority and customary law, land tenure, and governance are rooted in political struggles over limited land resources. In Eswatini this is mutually reinforcing, whereas in Lesotho the bond is slowly breaking between the chieftaincy and land. We can witness this also in reforms for strengthening land institutions. In Eswatini, a recent project helped improve the governance of customary land by building capacity at the chiefdom level to manage and administer their own lands, and perhaps in a second phase to create a 'traditional' land institution authority to support and sustain this community-driven approach. In Lesotho, by contrast, a new project will look at ways to decentralise state authority and make statutory land institutions and administration more accessible to rural communities.

Which is the right approach? Improving traditional authority or substituting the chieftaincy with ministerial authority? Both? After all, context is key. The conclusion is consequent on the outcomes and impact: on less land disputes, increased tenure security, good governance, reduced inequality, protection for vulnerable groups, and improved rural livelihoods

References:

Land Portal – Eswatini

https://www.landportal.org/library/resources/detailed-timeline-eswatini

Land Portal - Lesotho

https://landportal.org/nl/file/56826/download

Quinlan, T., 1994. Chiefs, Politics and Culture in Lesotho. https://open.uct.ac.za/bitstream/handle/11427/23740/Quinlan_Marena_a_Lesotho_chiefs_1995_1.pdf?sequence=1&isAllowed=y

Hughes, J., 1972. Land Tenure, Rights and Communities on Swazi Nation Land

https://europa.eu/capacity4dev/sustainable-land-administration-and-management/documents/land-tenure-rights-and-communities-swazi-nation-land

Welcome to the country focused online discussion space where we aim to critically examine  the changing role of customary law and institutions in the management and administration of land under customary tenure in three former British protectorates of Eswatini, Lesotho and Botswana in Southern Africa.

We start the discussion by trying to understand a little about the history of the three countries. Lesotho and Botswana obtained independence in 1966 while Swaziland (Eswatini) obtained independence two years later. 

• What were the main approaches taken by the British colonial governments in the different countries to customary law and governance systems?

• In what ways have post-colonial governments in the three countries changed these inherited systems?

• What has been the thinking behind these changes?