Eswatini - Context and Land Governance

^{Photo: Jessica Eriksson/Flickr (CC BY-NC-SA 2.0)}

Eswatini has a dual landholding system of freehold title and ‘Swazi Nation land’, which was a result of a series of laws passed by colonial administrators between the early 1900’s and 1968. The Constitution of 2005 vests executive authority for the management and governance of land in the Ngwenyama (the Siswati term for the King) in trust for the Nation¹.

King Mswati III has governed Eswatini since 1986. There is a marked urban rural political divide in Eswatini. In urban centres there is mounting resistance to the King’s autocratic rule and lavish lifestyle. In rural areas respect for the institutions of the monarchy remains largely intact. Although classified as a lower-middle income country, 59% of people in Eswatini were living below the poverty line in 2017. The country is characterised by high levels of poverty and inequality. Despite its small population size, Eswatini has the highest HIV prevalence in the world which has impacted heavily on families and households. Within the entire population, 35.1% of all women are living with HIV, compared to 19.3% of men².  Some 12% of women aged 15-49 are in a polygamous marriages³. 

Historical backdrop

In the early 1800s, during a period of regional social upheaval, the Dlamini clan who now form the nucleus of the royal family migrated from Delagoa Bay, south of present-day Maputo in Mozambique to settle in southern Swaziland. The Swazi people soon faced new territorial challenges from colonial and Zulu invaders. In the 1840’s the Boers established themselves in the Eastern Transvaal and proceeded to colonise much of the land to the north and to the west. Between 1885 - 1889 Swazi King Mbandzeni allocated large tracts of land to European concession seekers in exchange for an annual income of around £20,000⁴.  Swaziland was declared a British Protectorate in 1906.

Between the early 1900’s and 1968 colonial administrators passed a series of land laws. In this period two thirds of Swaziland were appropriated for commercial development, while the remainder was reserved for Swazi citizens. While 58% of the Swazi population lived on Swazi Nation land, spread between 32 reserves, the remainder lived with precarious land rights on freehold land controlled by land-owning settlers and commercial estates.

Colonial authorities imposed punitive hut and other taxes on all the protectorates in the southern African region. However, those imposed on Swazi people were reportedly higher than in any other territory under British colonial control. This ensured that the vast majority of working age men were recruited as mineworkers on South Africa’s rapidly expanding goldmines. “The Swazi had become a nation of labour migrants by World War I”⁵.

The country held its first democratic elections in 1964, as a precursor to obtaining independence from Britain in 1968. The constitution – drafted primarily by colonial authorities – combined a system of multiparty democracy, while simultaneously formalising the power of the Swazi monarchy and the chieftaincy system. This constitution vested land in the Ngwenyama who delegated land allocation and administration of Swazi Nation land to the chiefs. Male household heads could apply to obtain land through a customary process known as kukhonta. This has been described as “a form of application to be part of the chiefdom and involves a commitment to pay allegiance to the chief. The chief under this process gives the subject user-rights to a piece of land, and this land is demarcated to show the boundaries”⁶. This demarcation process rested on local oral agreement and the pacing out of indicative  boundaries.

Westminster style democracy was short-lived in Swaziland. In 1973, King Sobhuza II suspended the constitution, banned political parties, dissolved parliament and introduced laws which enabled detention without trial. A new national constitution was promulgated in 1978, which delegated political power to the Ngwenyama as an absolute monarch. The constitution put in place a system of local government, whereby 360 chiefdoms operating as administrative centres⁷ were organised into 55 Tinkhundla (local/district assemblies) where men in each constituency elect a representative to the House of Assembly in Parliament. 

King Sobhuza II died in 1986 and was succeeded by King Mswati III.

Land legislation and regulations

Pre-independence 
Much of the legislation passed in the pre-independence period laid the foundation for a dual system of land law. The Concessions Partition Act of 1907 enabled land leased through concessions to be converted to individual freehold title, while Swazi Nation land was administered in terms of customary law by the monarch through the chieftaincy system. The conversion of leased concession land to freehold title left some 42% of the Swazi population living on land now owned by settlers. These ‘farm dwellers’ were given a five-year ‘grace period’ in which to relocate to Swazi Nation land. If they had failed to move after five years, the landowner was legally entitled to evict them, or to permit them to stay on by agreement. These agreements frequently involved labour tenancy arrangements in which resident households provided free labour to the landowner in exchange for occupancy and specified use rights on privately owned land.

As early as 1925 King Sobhuza and his councillors sought to revive the authority of the monarch and the chiefs, which he argued was being eroded by the combination of land alienation, labour migration and mission education⁸.   In this they were successful. The 1950 Swaziland Native Administration Act ceded significant powers to the Ngwenyama and the chieftaincy system which cemented their control over the allocation and administration of Swazi Nation land.

As the prospect of Swaziland gaining independence gained momentum in the 1960’s, so laws were passed which sought to protect the rights of colonial landholders. The Acquisition of Property Act (1961) ensured that compensation would be payable by the State for any land acquired through the Act. One year before Independence, the Farm Dwellers Act (1967) strengthened the rights of Swazi households living on freehold land, but still gave landowners the right to remove them, provided compensation was paid.

Post-independence
Swaziland gained political independence from Britain on 6th September 1968. Five years later the King suspended the Constitution. A Land Concession Order promulgated in 1976, made all land concessions granted in freehold “subject to the pleasure of the king and on such terms as he may determine”⁹. This gave the King power to revoke existing concessions, but where this took place compensation was payable. There remained a few concessions that had not been converted to freehold and most of these were settled as if they were national land.

The Land Speculation Control Act of 1972 established a Land Control Board (LCB) and a Land Control Appeals Board. The Act imposed restrictions on transactions of freehold land. It required the registration of all landowners who were non-citizens and designated the sale, transfer, lease or other disposal of land to non-citizens as controlled transactions, requiring approval by the Board.

While land may be owned in freehold, there are frequently Swazi households residing on this land. In 1982 the Farm Dwellers Control Act recognised the rights of ‘squatters’ on farms and sought to regulate these by means of a written agreement, valid for a fixed period and requiring renegotiation upon expiry. The Farm Dwellers Control Act was amended in 1984 to allow for the creation of Farm Dweller Tribunals to rule where rights were in dispute. Chiefs were represented on these Tribunals which increased their powers to determine use and occupancy rights on freehold land.

The King imposed levies on Swazi citizens, ostensibly to buy back land for the Swazi Nation. The buyback programme initially had British government support. Approximately 128,000 ha were purchased by the State between 1969 and 1983. However, increasingly this land was diverted for use as state farm projects and agricultural estates. This led to many workers or tenants living on newly acquired land being evicted by the state¹⁰.  By 1991 more than half of the land targeted for buyback had been purchased privately by Tibiyo, the state investment company, as well as by private Swazi citizens¹¹.  British government support for the buyback ceased at this point.

A new Constitution passed in 2005 declared that:

• Land, minerals and water are national resources.
• All land vests in trust for the Swazi Nation. 
• A citizen of Swaziland, without regard to gender, shall have equal access to land for normal domestic purposes.
• A person shall not be deprived of land without due process of law and where a person is deprived, that person shall be entitled to prompt and adequate compensation.
• A Land Management Board consisting of a chairman and not more than four members appointed by and accountable to the Ngwenyama is responsible for the overall management, and for the regulation of any right or interest in land, whether urban or rural.

Land tenure classifications

Land law in Swaziland regulates two broad land tenure categories:

• Freehold land (including the rights of citizens living on land owned by others)
• Swazi Nation land

The Swazi Administration Act of 1950 codified to extend the powers of the Ngwenyama and chiefs over everyone residing on nation land. Land disputes on Nation land were resolved through the chieftaincy system and codified customary law, while courts operating under Roman Dutch law had jurisdiction over land held in freehold title.

In 1969 a joint UK-Swazi Land Mission found that over 240,000 ha of land was owned by non-citizens. It also identified 140,000 ha of underutilised land targeted for purchase and redistribution as Swazi Nation land¹².  By 2006 70% of the land was categorised as Swazi Nation land and 30% freehold or title deed land. The latter included land in urban centres, industrial parks and freehold farms¹³.  

^{Swaziland, photo by Jessica Eriksson (CC BY-NC-SA 2.0)}

Land use trends

Supplies of arable land are reported to be dwindling fast, with only about 10% of Eswatini being arable. In 2017 78% of the Swazi population was still living in rural areas where land pressures are increasing. Commercial estates on freehold land produce sugarcane and citrus. Eswatini is the fourth largest sugar producer in Africa and sugar production accounts for more than half of the country’s agricultural output, contributing some US$285 million totalling 16% of GDP¹⁴.  There is also a large forestry sector growing pine and eucalyptus. The sector has a competitive bioregional advantage in that pine plantations mature in 16 years, as opposed to 40 years in the northern hemisphere¹⁵.

The Lubombo conservancy established in 1999 comprises five protected areas linked to transfrontier conservation areas bordering Eswatini, Mozambique and South Africa. These areas cover 3.9% of the country’s land area. Eswatini faces pressure to expand these protected areas, but this has implications for local land rights and livelihoods.

^{Agriculture in Swaziland, photo by ShaaronS (CC BY-NC-SA 2.0)}
 

The country is prone to severe droughts, which can be expected to increase in severity with the acceleration of climate change. A draft land policy prepared in 2009 indicated that 50% of all rangeland, or about one quarter of Eswatini’s total land area is either severely, or very severely eroded. It has been estimated that the livestock carrying capacity of the rangeland has declined by half.

Land administration challenges include ad hoc land use and development, land speculation and rapid growth of informal settlements in peri-urban areas¹⁶.  These are made more complex by unclear, multiple and overlapping mandates of government ministries, agencies and traditional authorities.

Land investments and acquisitions

In 1968 the state investment company known as Tibiyo Taka Ngwane was established. This set out to buy shares in major companies and enter into loan agreements with foreign investment partners. Tibiyo purchased freehold land, but much of this land was for the extension of sugar estates – a key sector in the Swaziland economy. Where Tibiyo purchased land to expand the sugar estates it was often instrumental in evicting Swazi households resident on this land. Tibiyo revenues are managed by a Board of Directors appointed by the king which has no accountability to any other body.

In 2018 a civil society organisation, the Swaziland Justice Forum (SJF), alleged that the Royal Swaziland Sugar Corporation (RSSC) was complicit in the illegal eviction of 33 farmers and their dependents from an area known as Vuvulane. According to the SJF these evictions followed plans by the King to take over the land and vest it in the Tibiyo Taka Ngwane wealth fund, before leasing it on to the RSSC¹⁷.

In Eswatini there are strong arguments put forward by SJF that the lucrative sugar industry has benefited the King and favoured multinationals while displacing Swazi people from plantation land¹⁸.

Currently there are also EU funded programmes including support to agriculture value chains via “sustainable and inclusive energy investments” in Eswatini, and the Eswatini Livestock Value Chain Development Programme¹⁹.

Women’s land rights

Swazi social norms dictate that “a woman is inferior when it comes to property ownership and her status is that of a perpetual minor under the control and power of male guardianship”. This perceived inferiority extends to “matrimonial property rights, access to land and land ownership, and succession to and inheritance of property²⁰.

Generally, women are not permitted in terms of customary law to present themselves directly to the chief and his councillors, or libandla, but must be represented by their husbands in any disputes over land²¹.  However there are exceptions where more modernist chiefdoms are allocating land to women directly. In terms of Swazi customary law only the family head (invariably male in terms of custom) is eligible to khonta, the process to obtain land which is allocated to the family as opposed to an individual. A chief with his councillors retains the right to recognise who “shall and who shall not belong to the chiefdom under his control”²².  “Swazi law and custom does not recognise the concept of absolute majority, so a married son has to apply for khonta through a family head. A widow can obtain land through her married son”²³.  

Until recently women were relegated to the status of minors. Customary and common law systems have discriminated both on the grounds of marital status and gender. They have limited women’s rights to land which “women regard as a serious disempowerment that should be rectified as soon as possible”²⁴.

Women also experience discrimination with regard to rights to household property: “Each married man with his family constitutes a household. The man controls the property belonging to that household. However, he cannot deal with or alienate household property unilaterally or arbitrarily. He must consult with members of his household, particularly his wife”²⁵.

In the event that a man does not consult a married woman, recourse is limited to reporting the matter to his parents and other family members. “Married women are subject to their husbands’ marital power and lack locus standi (legal standing) in judicial matters in ESwatini”²⁶.  This extends to women’s ownership of freehold land and places impediments preventing their registration of title. Originally, “the Deed’s Registry Act regard[ed] women as incapable of unilaterally registering real rights to property, unless they are married ‘out of community of property"²⁷.  However this changed with the passing of the 2005 Constitution and amendments to the Deeds Registry Act.

Property grabbing, a practice where relatives assume the property of the deceased man’s family, impacts on the livelihoods of women and children. Over half of ever-widowed women in Swaziland reported that they had been dispossessed of their property²⁸. This dispossession is rooted in custom as a wife is considered a "foreigner" in the patrilocal marriage system, having come from another chiefdom or clan. On the death of her husband, she is expected to go back to her chiefdom and family home, leaving the land to her sons and daughters who are subjects of the chiefdom. To retain her property rights a widow could become a new wife of her deceased husband's brother. However, this custom is no longer widely practiced.

More recently the 2005 Constitution has made concessions to gender equality stating that “a citizen of Swaziland, without regard to gender, shall have equal access to land for normal domestic purposes”. Despite this clause, Section 115 of the Constitution “provides that the same Constitution does not extend over certain traditional matters, including matters involving the regulation of Swazi Nation land”²⁹.

The draft land policy of 2009 states that “Land related legal impediments to gender equity are to be removed. The growth towards gender equity in customary tenure is to be encouraged.” Despite progressive provisions in the Constitution and land policy, legal reform has been slow to align. However, in an important judgment handed down on 30th August 2019 the Eswatini High Court ruled that the common law doctrine of marital power was unconstitutional, discriminating against women and their right to property. The judgment also struck down sections 24 and 25 of the Marriage Act³⁰. 

At the same time as a range of Bills have been drawn up seeking to improve the legal status of women, there is also some evidence that living customary law is evolving to recognise women’s land rights. There are examples where chiefs have begun to allocate land to women in their own right. This may reflect the rising incidence of single headed households in Eswatini.

Urban tenure issues

In 1969 an Urban Government Act was passed to regulate land use in urban areas. The Land Management Board (LMB) established in terms of the 2005 Constitution is responsible for the overall management, and regulation of any right or interest in land whether urban or rural.  According to land specialists the role of the LMB remains “unclear, at times controversial, and has complicated land administration and management”. While the LMB has been established, its powers and responsibilities remain vague and undefined. This was to be remedied by the Land Bill of 2013. However, the Land Bill, despite passing through both houses of Parliament, has not been promulgated by the King.

With unemployment of 40.6%, there has been migration to Mbabane and Manzini, the two major cities. There has been a rapid growth of informal settlements in peri urban areas³¹ with most migrants settling on unplanned and unserviced land. The World Bank has estimated that 60% of the urban population live in informal areas on land that has not been surveyed, with insecure and unregistered land rights. Less than half of the urban population has access to municipal services such as clean water, while just 25% of urban dwellers have access to a waterborne sanitation system.

In this context informal settlements have been described as “spaces of confrontation between traditional and urban authorities”³².  There has been longstanding contestation between City Councils and chieftaincies over who controls land and has the authority to allocate it in urban areas. When the Ministry of Housing and Urban Development issued 99-year leases as part of an urban residential upgrading programme, this prompted protests by chiefs that this encroached on their authority to allocate land. However, this contestation is not just over land allocation powers, but opportunities to access associated revenue streams. Chiefs seek khonta fees from their subjects while the Council seeks income from plot and rates payments³³.

Community land rights issues

Individuals seeking to access Swazi Nation land must obtain the approval of structures associated with the local chieftaincy. Individuals obtain use rights to build on and cultivate the land. In exchange for these rights, a household allocated land is expected to kuhlehla, or render services to the Chief’s house and in his fields. This land may pass to his or her descendants in terms of the norms of Swazi customary law. While Chiefs retain powers to evict and or re-allocate a household in the community upon evidence of crime and witchcraft, customary 'landholding' rights and tenure of families is strong and secure, and it is rare that a family is evicted from a chiefdom³⁴.  

^{Ebutsini Cultural Village offers visitors the chance to savour the rhythm of Africa. Photo: ROWANPYBUS /Flickr (CC BY-ND 2.0)}

Voluntary Guidelines on Responsible Tenure (VGGT)

The EU funded Sustainable Land Administration and Management project 2016-2019 is premised on the principles in the VGGT. This project is one of multiple initiatives of the European Union Land Governance Programme that seeks to “develop, test and provide tools and capacities for sustainable land administration and management at local, regional, and national levels that help rural communities improve their food security”³⁵. 

Timeline - milestones in land governance

1750  The Dhlamini clan migrated along the Pongola River from the Delagoa Bay area in Mozambique into southern Swaziland

1845 – 1880  Contestation over territory between Boer settlers and Swazis before King Mbandzeni permits concession seekers to obtain significant portions of the land in Swazi controlled territory

1906  Swaziland declared a British Protectorate

1907  Concessions Partition Act divides up the country opening up “two thirds of Swaziland commercial development while returning to the Swazis 1/3 of their land”³⁶

1921  King Sobhuza II installed as Monarch aged 22

1950  Swaziland Native Administration Proclamation No 79 formalised the powers of the monarchy and the chieftaincy and cemented their control over land

1968  Swaziland obtains independence

1973  King Sobhuza II suspends the Constitution

1986  Sobhuza II’s son Mswati III installed as Swazi King

1992  Rise of pro-democracy civil society and trade union opposition to the monarchy

2000/1  Draft National Land Policy

2005  New Constitution establishes a Land Management Board (LMB) accountable to the Ngwenyama

2019  Eswatini High Court ruled that the common law doctrine of marital power was unconstitutional, discriminating against women and their right to property

Where to go next?

The author's suggestion for further reading

The Eswatini Land Administration and Management Project has compiled a project library containing valuable and an up to date set of resources on land tenure and administration. 

Currently the Eswatini National Development Plan states that its land priorities include: 

• finalising the review of all land related legislation (Bills and policies); 
• enabling registration of land use rights on Swazi Nation land; 
• upscaling systematic flow of spatial Information; 
• legislating against the sale of Swazi Nation land through informal land markets;
• formalising arrangements for leasing of idle government farms and Swazi Nation land. 

Overall, as the country urbanises further, there remains an intractable clash of roles and rationalities between traditional authorities and modern government institutions. In the larger scheme of things fundamental contestations exist between an authoritarian and patriarchal monarchic system and citizens seeking democratic alternatives which will erase gender discrimination and result in a more equitable society.

A paper presented to the recent NUST-NELGA symposium on land Governance in Africa by Absolom Manyatsi and Siaco Singwane provides the most up to date and detailed review of land governance in Eswatini³⁷ and provided valuable information for the compilation of this profile. 

For more in-depth information the companion Detailed Timeline: Eswatini provides a chronology of key historical events and linked land related issues. 

***References

[1] Manyatsi, Absolom, and Saico S Singwane. 2019. Land governance in eSwatini. NUST-NELGA Land Symposium 3-4 Sept 2019.

[2] UN AIDS. 2019. "Eswatini Aids Info." accessed 9 February. http://aidsinfo.unaids.org/

[3] Avert. 2019. "HIV and AIDS in Eswatini." accessed 9 February. https://www.avert.org/professionals/hiv-around-world/sub-saharan-africa/swaziland

[4] Levin, Richard. 1990. "Is this the Swazi way? State democracy and the land question."  Transformation 13

[5] MacMillan, Hugh. 1985. "Swaziland: Decolonisation and the Triumph of 'Tradition'."  The Journal of Modern African Studies 23 (4):643-666.

[6] Simelane, Lunga. 2014. "Participation of the previously landless in farmer companies under the LUSIP project in Swaziland." Masters, Management studies, University of the Witwatersrand.

[7] Simelane, Hloniphile. 2016. "Urban Land Management and its Discontents: A Case Study of the Swaziland Urban Development Project (SUDP)."  The Journal of Development Studies 52 (6):797-812. doi: 10.1080/00220388.2015.1098632.

[8] MacMillan, Hugh. 1985. "Swaziland: Decolonisation and the Triumph of 'Tradition'."  The Journal of Modern African Studies 23 (4):643-666.

[9] Kingdom of Swaziland. 2009. Draft of the National land Policy. Swaziland.

[10] Levin, Richard. 1990. "Is this the Swazi way? State democracy and the land question."  Transformation 13

[11] Mndzebele, Alfred. 2001. "Land issues and land reform in Swaziland." Land reform and poverty alleviation in southern Africa, Johannesburg.

[12] Ibid

[13] Lukhele, MSP. 2006. "The National land policy development under the new constitutional dispensation." Decision-Makers Meeting: Good Administration of Lands, Windhoek.

[14] Mtasebula, M. 2020. "Sweetening the deal – How the Eswatini sugar industry is helping keep the country's economy afloat amidst global uncertainties." African leadership magazine, accessed 20 January. https://www.africanleadershipmagazine.co.uk/sweetening-the-deal-how-the-eswatini-sugar-industry-is-helping-keep-the-countrys-economy-afloat-amidst-global-uncertainties/.

[15] New Agriculturalist. 2002. "Country profile – Swaziland." New Agriculturalist, accessed 20 January. http://www.new-ag.info/en/country/profile.php?a=863.

[16] Lukhele, MSP. 2006. "The National land policy development under the new constitutional dispensation." Decision-Makers Meeting: Good Administration of Lands, Windhoek.

[17] Phillips, Lloyd. 2018. "Swazi sugar Corporation accused of illegal evictions." Farmers weekly. https://www.pressreader.com/south-africa/farmers-weekly-south-africa/20181102/282643213548512.

[18] Africa is a country. 2019. "Bittersweet Swazi sugar." accessed 20 January. https://africasacountry.com/2019/03/bittersweet-swazi-sugar.

[19] IFAD. 2018. "Innovative beef value chain development schemes in Southern Africa." accessed 9 February. https://www.ifad.org/documents/38714170/39887213/Grant+Results+Sheet_Innovative+beef+valuechain+development+schemes+in+Southern+Africa.pdf/0c469499-706f-f7ee-4b4e-d68fbf82e67e.

[20] Dlamini-Ndwandwe, Nonhlanhla F. 2011. "The Constitution and women's property rights in Swaziland."  Southern African Public Law 26 (2):408-430.

[21] Mushala, HM, AM Kanduza, NO Simelane, JK Rwelamira, and NF Dlamini. 1998. Dual tenure systems and multiple livelihoods: A comparison of communal and private land tenure in Swaziland. Land Reform, Land Settlement and Cooperatives (FAO).

[22] Scott, Susan. 2006. "Some thoughts on the law of property in Swaziland."  The Comparative and International Law Journal of Southern Africa 39 (1):152-177.

[23] Ibid

[24] Ibid

[25] Ibid

[26] Dlamini-Ndwandwe, Nonhlanhla F. 2011. "The Constitution and women's property rights in Swaziland."  Southern African Public Law 26 (2):408-430.

[27] Ibid

[28] Naysmith, Scott, Alex de Waal, and Alan Whiteside. 2009. "Revisiting new variant famine: the case of Swaziland."  Food Security 1 (3):251-260. doi: 10.1007/s12571-009-0031-1.

[29] Dlamini-Ndwandwe, Nonhlanhla F. 2011. "The Constitution and women's property rights in Swaziland."  Southern African Public Law 26 (2):408-430.

[30] Southern Africa Litigation Centre. 2019. "Eswatini: Challenge to the common law marital power and Marriage Act." accessed 20 January 2021. https://www.southernafricalitigationcentre.org/2019/08/30/swaziland-challenge-to-the-common-law-marital-power-and-marriage-act/.

[31] Lukhele, MSP. 2006. "The National land policy development under the new constitutional dispensation." Decision-Makers Meeting: Good Administration of Lands, Windhoek.

[32] Simelane, Hloniphile. 2016. "Urban Land Management and its Discontents: A Case Study of the Swaziland Urban Development Project (SUDP)."  The Journal of Development Studies 52 (6):797-812. doi: 10.1080/00220388.2015.1098632.

[33] Ibid

[34] Dlamini, D.D, and M.B Masuku. 2011. "Land tenure and land productivity: A case of maize production in Swaziland."  Asian Journal of Agricultural Sciences.

[35] Johnson, Sean. 2019. "Sustainable Land Administration and Management: Eswatini." EU, accessed 9 February. https://europa.eu/capacity4dev/sustainable-land-administration-and-management.

[36] Manyatsi, Absolom, and Saico S Singwane. 2019. Land governance in eSwatini. NUST-NELGA Land Symposium 3-4 Sept 2019.

[37] Kingdom of Swaziland. 2009. Draft of the National land Policy. Swaziland.