The National Land Policy Development under the New Constitutional Dispensation

1
The National Land Policy Development under the
New Constitutional Dispensation
Swaziland

• 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 Gains 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