Lesotho - Context and Land Governance

^{Photo source Fliker Photo Fiverlocker CC BY-NC-ND 2.0 Lesotho lowlands} 

Lesotho has a long history of contestation over land allocation and tenure systems. An alliance with the British in 1868 by the country’s monarchy to prevent Boer invasion had the effect of transforming the institution of chieftainship into an extension of colonial administration³. Two legal systems have regulated access to land – customary law (as codified by colonial administrators) and statute. Lesotho gained independence from the British, along with Botswana in 1966. Since the 1970’s a range of land laws have been passed. These have attempted to ‘modernise’ land administration while simultaneously seeking to limit the power of customary chiefs and regulate their land allocation functions, particularly in urban areas. 

Lesotho’s post-independence history has seen intense political contestation over the relative powers of the monarchy, the chiefs, the prime minister, and the administration. The country gained a new constitution in 1993, but deep social and political divisions have persisted resulting in recurrent episodes of instability in the country⁴. Interventions by the World Bank and bilateral donors over time have been decisive in changing policies on land allocation and administration⁵.  

By 2010 Lesotho had one of the most migration-dependent economies in the world⁶. Today Lesotho remains one of most unequal and poorest countries globally with a GDP/capita of $1,222⁷.

Land legislation and regulations

Prior to independence, land in Lesotho was held in trust by the King for Basotho people. Hereditary chiefs presided over customary courts and were responsible for allocating land to married men. Women were ineligible to access land in their own right. However, as in many African countries colonial administrators in Lesotho sought to codify African customary law to enable it to be more easily administered by the colonial judicial system”⁸. In doing so they remade traditions through the promulgation of a customary code in 1903 known as the Laws of Lerotholi. 

The code gave the chiefs power to allocate land, as well as take away rights to land which was deemed to be improperly used. In terms of the code, land could not be alienated and people could only acquire use rights⁹. A court judgment in 1955 required that chiefs undertake land allocation “fairly and impartially” – a ruling which at the time did not imply that land could be allocated to women. Land allocation and administration functions were further elaborated in new legislation formulated in terms of Roman Dutch law¹⁰. These included a Land Procedure Act and a Deeds Registry Act of 1967 along with the Land Act and the Administration of Lands Act, both passed in 1973.  The latter Act remained unimplemented before the different laws were amalgamated into the 1979 Land Act.

Section 3(1) of the 1979 Land Act stated that “land in Lesotho is vested absolutely and irrevocably in the Basotho Nation and is held by the Head of State (the King), as representative of the nation”. The Land Act removed the direct powers of traditional authorities to allocate land and transferred these to Village Land Committees (VLCs). These were chaired by chiefs, who were represented in an ex officio capacity¹¹. The dilution of the land allocation functions of chiefs caused tensions between traditional authorities and the State¹². The law also sought to put in place mechanisms to grant titles and create servitudes under the control of the central state, primarily in the urban sphere. Traditional authorities argued that the Act was unconstitutional as in their view only the King had authority to allocate or withdraw land rights¹³. 

The Land Act of 1979 set out three broad types of land right:

• Allocation of land certificates via Land Allocation Committees in rural areas. These certificates conferred the rights to use and occupy the land, but not to transfer it. These land rights could be passed to the widow and then to heirs designated by surviving family members. These land rights could be revoked for public purposes¹⁴.

• Leasehold in urban areas issued by Urban Land Committees and officials in the Department of Land, Survey and Physical Planning which are subject to ground rent changes. Lease durations ranged from 90 years for residential properties to 60 years for industrial and commercial purposes¹⁵. People who wanted to apply for a lease had to pay a surveyor to survey the land parcel. Very little land registration took place due to a variety of factors including high costs of survey, time consuming bureaucracy as well as the liability to pay ground rent on the property once registered.  These measures were also resisted by chiefs as they eroded their land allocation powers¹⁶.

• The state also issued licences to enable people to access agricultural land within legally gazetted urban boundaries. These could be terminated on three months’ notice without compensation¹⁷.

The 1979 Land Act allowed for the declaration of Selected Development Areas (SDA’s) in which land could be acquired for newly planned settlements and commercial development along with the upgrading of informal settlements¹⁸. 

A Land Policy Review Commission published a report in 1987 with recommendations on tenure reform, but reportedly there was no political will to implement the Commission’s recommendations¹⁹.  

In 2005 a Local Government Act (passed in 1997) finally came into force which formally removed land allocation functions from chiefs to local land committees. 

In 2008 the Government of Lesotho signed a five-year agreement with the Millennium Challenge Corporation – a new USA foreign aid vehicle. The agreement known as the Millennium Challenge Compact (MCC) focused on modernising Lesotho’s land administration system and measures to stimulate growth of a land market²⁰. $20 million was allocated for development of new land laws, institutional change, and regularisation of tenure. At this point 25% of the population was urbanised²¹.

Land tenure classifications

As noted above, people in rural settings could obtain land certificates via Land Allocation Committees which confer the rights to use, occupy and bequeath the land, but not to alienate it. However, there was little demand from rural land occupiers for these allocation certificates.

In the urban areas land allocation by chiefs has largely been replaced by a system of leasehold titling. “The vast majority of these leases are either individual or joint leases, and they are alienable and freely exchangeable”²⁷. Lease durations ranged from 90 years for residential land to 60 and 40 years for industrial and commercial purposes²⁸. 

It is also possible to apply for a short-term licence to access agricultural land within legally gazetted urban boundaries. These licences could be terminated on three months’ notice, without compensation²⁹.

Land use trends

Lesotho is a key water source for the industrial heartlands in South Africa through the multibillion bi-national Lesotho Highlands Water Project. Ordinarily, the LHWP initiated in 1986 supplies between 60- 70% of water to Gauteng. However, climate change related drought and reduced winter snowfalls on the mountains have reduced water availability dramatically. 

Overall, 76.1% of Lesotho’s land can be characterised as agricultural, of which between 10 and 11% is arable. The mountainous terrain means that much land is located on steep slopes and inaccessible. Very little land is forested - in the region of 1.5%. Lesotho is regarded to be highly vulnerable to the effects of climate change and is prone to severe droughts, frost and flooding. There are significant concerns about environmental degradation and soil erosion impacting on catchments and watersheds. In the mountain common grazing land – “owned, used and administered through community institutions with reasonably well-distributed benefits - has become an open access terrain delivering reduced benefits to fewer people in a context of continuing environmental degradation”³⁰.

Annual depletion of natural resources is estimated at 4.6% of Gross National Income³¹. The contribution of agriculture to GDP has declined from 20% in 1980 to around 6% in 2017³². 

^{Lesotho goats, photo by H. Beisner, originally published in Pixabay, CC0}

Land investments and acquisitions

A 2014 UNCTAD Investment Review notes that there is a local partnership requirement of 20% for foreign investors seeking to access direct lease titles from the Government applies to all economic sectors. According to UNCTAD this “constitutes a deterrent to investment in a country where access to land remains a primary bottleneck in the investment environment. It is telling that no foreign investor to date has requested land title under the conditions set out in the new law”³³.

Women’s land rights

Following the failure to implement recommendations contained in the 1987 Land Policy Review Commission, the World Bank and bilateral donors actively intervened to influence land policy. They sought to enable women to access land rights and create an urban land market as a precondition for investment. 

Married women were legally considered minors until 2006 when the Legal Capacity of Married Persons Act enabled women to have full citizenship rights and own property in their own right³⁶. While the 2010 Act altered the relationship between land and gender in Lesotho, this did not necessarily result in increased ability of women to benefit from access to land in rural settings³⁷.

However, there is evidence that the Land Act significantly improved women’s land rights security in urban areas. For example “the Land Act contained a provision for presumption of joint title in marriages and therefore every lease issued in the regularisation project named both spouses”³⁸. This was non-negotiable, and reportedly very few men resisted this stipulation. Of the new land leases issued in terms of the Act 12% were issued to men, 34% to women and 52% issued to married couples jointly³⁹. In this way the Land Act has also protected women’s inheritance rights.

Urban tenure issues

A Town and Country Planning Act was passed in 1980, primarily to regulate allocation of land in urban areas along with a Valuation and Ratings Act. Again this was intended to end the allocation of urban land by chiefs in terms of customary tenure norms⁴⁰. These laws struggled to gain traction due to lack of state capacity which was partly addressed following the passing of the Urban Government Act of 1983 and the Local Government Act of 1987. However, in practice rents and rates went largely uncollected.

Rapid urbanisation with the quadrupling of the of the urban population between 1976 and 2006 provided the main impetus for leasehold land titling⁴¹. There remain important questions about how the urban is defined in planning law, as much of the population increase is located in areas on the fringes of demarcated urban settlements “where agricultural land is informally subdivided into plots for sale under the hand of customary authorities”⁴².

Overall urban governance has been characterised as weak and ineffectual. This has implications for urban land management. The Maseru City Council was established in 1993 following pressure by the World Bank which threatened to withdraw funding for urban site and service schemes in Lesotho. In 2012 it was stated that 70% of the population continued to access land by informal means – both wealthy and poor households⁴³. UN Habitat reports that 7% of owners have bought their urban stand from a private individual or firm, while 67% have had the land allocated by chiefs and 20% have inherited it. This has meant that the formal property market in Lesotho has remained largely undeveloped.

In the 1990’s Lesotho experienced accelerated urbanisation. This followed the loss of 50% of South African mining jobs between 1989 and 2001, while new work opportunities for women in a recently established textile sector encouraged rural-urban migration⁴⁴. By 1996 30% of the population had moved to town, mostly to the capital Maseru. However, their land rights were insecure. Legal uncertainties and lack of institutional capacity in government meant that chiefs continued to allocate land in peri-urban areas while the city planners in Maseru and elsewhere struggled to deliver water and sanitation services.  In urban areas continuing legal dualism made it increasingly difficult to plan for a rapidly growing city. 

The Land Act of 2010 sought in part to address this and was accompanied by a process to regularise title in the urban areas. Landholders were requested to submit claims to their land with whatever evidence they had. If after 30 days, there were no objections to a claim a presumption was made that the claim is valid.  In some instances surveyors were sent to villages to survey land held by confirmed rights holders to record their leases. Once this process was complete in the Selected Development Areas, there were moves to purchase land from registered lease holders for housing development, commercial precincts and golf courses. Research highlights how registered rights holders were pressured by developers and the municipal officials to sell off agricultural land⁴⁵. There is evidence that some of those who were reluctant to sell were informally threatened with expropriation where compensation would be paid at a reduced rate⁴⁶.

Community land rights issues

The 2010 Land Act was silent on tenure security rights with regard to rural land held in common such as communal rangelands. It has been argued that this renders rural communities vulnerable to appropriation by wealthy individuals or corporate interests who could acquire land directly through the state⁴⁷. 

Land pressure countrywide has led to decreasing plot sizes as family land allocations are subdivided between children. This pressure has created tension between competing needs between land for housing and land for stock and crop farmers⁴⁸. At the same time agriculture is in decline. In 2010 only 8% of households were reported to sell any agricultural produce⁴⁹. 

The massive Lesotho Highlands Water Project impacted on the land, livelihoods and housing of some 27 000 – 30 000 people, requiring relocations and programmes of compensation. Arable and grazing land were submerged reducing livelihood opportunities and impacting on livestock health. An instream flow reduction study estimated that a further 155 000 people would be impacted by changes in river flows downstream from the main dams⁵⁰. These impacts are of particular significance as poverty levels are highest in the mountains and the Senqu River valley and have increased by 10% between 2002 and 2018⁵¹.

^{Lesotho roadavals, originally published in Pixabay, CC0}

Voluntary Guidelines on Responsible Tenure (VGGT)

The UN Voluntary Guidelines⁵² represents a political agreement and  a ‘soft law’ representing “global consensus on a set of norms”⁵³ for the governance of the tenure of land, fisheries and forests in support of the progressive realisation of the right to food”. The VGGT has elevated tenure over land and natural resources to a human rights issue. However there remain questions about VGGT and the extent to which “the socially progressive language of “respect for land rights” and “tenure security” are in practice advancing instrumentalities which are equally likely to pry open as to safeguard communal land in the face of outside interests”.

A recent review of Section 16 of (VGGTs) scores Lesotho’s land legislation as a C – where the laws do not adopt the VGGT principle. Section 16 focuses on legal provisions with regards to expropriation, compensation and resettlement. This follows a review of a “broad range of legally binding instruments, including national constitutions, land acquisition acts, land acts, communal land acts, agricultural land acts, land use acts, and regulations”⁵⁴. This rating reflects an assessment of land law but it can also be regarded as an indicator of  the state of land governance in Lesotho. Despite this finding there is evidence that the Land Act did much to improve land governance in urban areas. However, in rural areas chiefs continue to play a role in land governance and their land governance functions remain subject to limited effective oversight.

Conclusion

The various measures to shape land policy and develop law must be set against a backdrop of continued political instability in Lesotho. Corruption and maladministration continue to be a constraint in Lesotho at a societal level, although there are indicators suggesting improved service provision by the Land Administration Authority.  Despite this, where land transactions are concerned many landowners and users may fall back on “emergent market mechanisms that are only partially legitimated and regulated by the official system”.  Formal and the informal land access mechanisms continue to operate side by side.

Timeline: Milestones in land governance

1868 Basutoland declared a British Protectorate

1903 Promulgation of customary law legal code

1966 The Kingdom of Lesotho obtains independence from the British. Lesotho established as a constitutional monarchy with King Moshoeshoe II as head of State and a Prime Minister as the head of government

1967 A Deeds Registry Act and a Land (Procedure) Act passed

1968 Chieftainship Act

1970 The BNP loses election but nullifies election results, suspends the constitution and declares state of emergency

1973 Land Act and Administration of Land Act passed. Land Administration Act was not implemented due to opposition from chiefs to creation of Land Advisory Boards

1975 Externally funded Integrated Rural Development Projects promoted over a 10-year period which largely end in failure

1979 Land Act amalgamates previous land legislation and legally removed the direct powers of traditional authorities to allocate land transferring these to village land committees. The Act specified three types of land rights

1986 Military takeover topples Basotho National Party and limits powers of chiefs to allocate land

1987 Lesotho Highland Water Scheme commences. Some 20 500 poor rural residents experienced land losses in Phase 1A dam construction

1990’s Accelerating urbanisation in Lesotho. The loss of 50% of Lesotho migrant jobs on South African mines and investment in Maseru textile industry are key drivers of urbanisation

1992 Amendment to the 1979 Land Act allows for Urban Land Committees to legalise informal title. Conflicting systems of land allocation in peri-urban areas

1993 Democracy restored

1994 Military coup

1999 Donor funded Agricultural Policy and Capacity Building Project launched. Land Policy Review Commission (II) established

2001 Land White Paper/Bill

2005 Land allocation function formally removed from chiefs and transferred to local land committees

2008 Lesotho signs agreement with USA Millennium Challenge Corporation (MCC). A condition of the agreement was the drafting of a new Land Act and Land Administration Authority Act in order to stimulate growth of a land market

2010 MCC threatens withdrawal of funding if the Land Act is not passed. New Land Act passed despite opposition walk out

2012 Lesotho experiences a mounting food security crisis. Ongoing political insecurity

2014 Attempted coup

2016 Reintroduction of state subsidised block farming attempted in a bid to improve national food security. Programme proves to be uneconomic

2017 Domestic food production meets 1/3 of the country’s needs. An estimated 60% of households are landless

2019 Lesotho selected for a second compact with funding from the US Millennium Challenge Corporation

Where to go next?

The author's suggestion for further reading

The literature on land in Lesotho is quite niched. Back in 1994 anthropologist James Ferguson wrote a much- quoted critique of development aid entitled ‘The anti-politics machine: “Development” and bureaucratic power in Lesotho’ which remains important reading.  Clement Leduka has published wide-ranging research on Lesotho with an important focus on informal land delivery processes and access to housing.  Jonathan Crush has done important work on migration and food security across the Southern African region which includes a focus on Lesotho.

The companion Detailed Timeline: Lesotho provides a chronology of key historical events and linked land related issues.