ENL REFORMATION REQUIRED

The time has come for emaSwati to start the debate on the land within our tiny country. The Kingdom of Eswatini is characterised by two types of land tenure: land held in customary tenure or Eswatini nation land (ENL); and land held by freehold tenure, or title deed land (TDL). The latter is sometimes referred to as individual tenure farms (ITF). Many farms (emaplazi) are under TDL. The evolution of the dual system is traced back to the early 1900s.

There is some ambiguity in approaches to land tenure in Eswatini. In addition to the two basic categories of land tenure, some analyses distinguish a third category, Crown land (Armstrong, 1988; Mushala, 1992). TDL tenure, currently accounting for 37 per cent of the country, recognises exclusive access rights to a defined piece of land with titles held by many descendants of colonial masters, game reserves and corporate bodies. Owners of land titles can sell or use the land as collateral.

Compensation

The State can withdraw title in land required for national development only after making appropriate compensation. Crown land is distinguished as land owned by the government or a section of government (Mushala, 1992; Levin, 1987). Most of the urban areas of Swaziland are on Crown land for two reasons. First, urban property is predominantly a government estate. Second, after the suspension of the independence constitution in 1973, all land rights were vested in the King. The Eswatini Government can lease urban areas to individuals or institutions in the name of the King. The Constitution of 2005 confirmed that all crown and national land rights are vested in the King.

EmaSwati as individuals have invested greatly in ENL, building expansive houses and starting businesses besides agriculture, which has been the main focus for many years. Maybe the time has come for the discussion on 99-year leases on Eswatini national land. This would put billions of Emalangeni into the hands of emaSwati for investments.

Eswatini Nation Land
Eswatini nation land has a more complex structure that has never been defined by legislation (Rose, 1992). At present 63 per cent of Eswatini is ENL (Low, 1986). This land is held by the King in trust for the nation and is allocated by chiefs to homestead heads, who are men under Swazi law and custom. Although many women are de facto heads of homesteads, land is allocated to them through male proxies such as her son or close male relative. Membership in a local community is the condition for the right to receive or to be allocated land. Land can also be acquired through inheritance. ENL includes land bought from TDL landowners by a reigning monarchy in trust for the Swazi nation. Such land has been leased to private companies to attract private capital and expertise to ENL. The use of this land does not reflect the traditional and political relations between chiefs and people as provided for under Swazi law and custom.

Flory (1987) subdivided the constraints to commercialised agriculture and agricultural income on ENL into tenure and non-tenure-related categories. Non-tenure-related problems include transport and marketing, problems in the acquisition of inputs and access to extension services. Tenure-related constraints include the following. Fragmentation: The small average size of the farm plot (less than 2 ha) constrains commercial production and is often the result of fragmentation of holdings through inheritance. The fragmentation of the plots limits viable investments on the farm such as mechanisation or irrigation, resulting in low productivity.

This problem is compounded by the fact that family land consists of small fields scattered throughout the cultivation area of the community, according to how chiefs and families allocate fields. Moreover, land borrowing, even though not on a large scale, is practiced throughout Eswatini. This means agriculture needs to be substituted for property development and other business ventures. Security of tenure: ENL is generally regarded as lacking secure tenure. The chief has the power to allocate land, but he also has the power to take it away. The homestead members can only use the land, but do not own it - they only have usufruct rights. Farmers are also occasionally resettled by the chief for various reasons.

Although the chief rarely exercises the power of banishment, both banishment and the threat of resettlement can instill a sense of insecurity among community members and may act as a constraint on investments that might increase productivity.Credit constraints: One of the most common criticisms of communal tenure is the lack of immovable assets to pledge as collateral for loans. EmaSwati are unable to mortgage their land by using it as collateral, to do anything.  This limitation may constrain access to commercial credit, and hence investment and productivity increases.

The land tenure historic background
The present land tenure of Eswatini is a product of historical forces and has been shaped especially by those of the last 100 years. Until the last quarter of the nineteenth century, the Swazi monarchy controlled all the land through chiefs. This includes the land that was later to form part of South Africa namely the Mpumalanga and Ingwavuma areas.  Temporary land grants, mistakenly interpreted as permanent concessions, were first granted by Swazi rulers to White South African settlers during the colonial era. According to Swazi customary law, however, land could not be bought or sold by Swazi rulers (Rose, 1992).

A dual land tenure structure that permeated the entire economic, political and social system arose out of this misunderstanding. In 1907, land was designated as native reserves for the exclusive use of the indigenous population. The reserves, formally known as ‘Swazi Areas’, constituted about one-third of the country. The remaining two-thirds of the land was distributed as Crown land and concession land. The loss of land through colonial legislation not only undermined the base of the Swazi rulers, but imposed a capitalistic system of production that was supported by cheap, plentiful local labour (Rose, 1992). It would appear that emaSwati have been caught up in the Capitalist system already and needs to empower emaSwati on Eswatini national land. Imagine that the King in Council decided that all those on national land must have proper 99-year lease agreements for local. Billions of Emalangeni would immediately be available as collateral to banks for development funds. Comment septembereswatini@gmail.com.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: