By Sean Johnson, land administration specialist at COWI, Swaziland

* This piece was originally published as part of the online discussion on customary law in Southern Africa

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 subsist 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, 2021. Detailed timeline: Eswatini. https://www.landportal.org/library/resources/detailed-timeline-eswatini

Land Portal, 2021. Detailed timeline: 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 (l