The Rural Resettlement Policy, 2002

This is the Rural Resettlement Policy from the Ministry of Agriculture and Cooperatives, Government of Swaziland.

Table of Contents

PREFACE

PREAMBLE

1.6 Rural Resettlement Experience
1.6.1 Purchased Land Resettlement
1.6.2 Rural Development Area Type (RDAP)
1.6.3 Irrigation Scheme
1.6.4 Displacement Scheme

1.7 Institutional and Legal Framework
1.7.1 Institutional Framework
1.7.2 The legal framework of resettlement

1.8 Objectives of Past Rural Resettlement Efforts

1.9 Rationale for a New Rural Resettlement Approach and Policy: Lessons Learned and the Way Forward

1.10 The Policy Context: Review of Other Policies
1.10.1 The National Land Policy
1.10.2 Constitutional Review Commission

2 POLICY VISION

3 POLICY PRINCIPLES

3.1 Optimum and Sustainable Land Use by Rural Communities

3.2 Appropriate Choice of Land Management Strategies and Resettlement Models

3.3 Sustained Community Participation and Involvement

3.4 Transparent, Orderly and Legitimate Land Allocation

3.5 Fair, Equitable and Adequate Compensation of Affected Persons

3.6 Appropriate and Effective Legislation

3.7 Efficient Management of Land Disputes

3.8 Ensuring Sustained Monitoring and Evaluation

4 POLICY FRAMEWORK

4.1 Sustainable Land Management and Resettlement Strategies
4.1.1 Issue: The need for effective land use plans in rural and peri-urban areas
4.1.2 Issue: The need to put in place a planning process that is technically sound, institutionally strong and participatory
4.1.3 Issue: Adapting resettlement strategies to modern conditions and local circumstances
4.1.4 Issue: Using plans to guide future allocations, even in non-resettlement areas
4.1.5 Issue: Environmental degradation
4.1.6 Issue: Encroachment of other land uses into grazing areas
4.1.7 Issue: Grazing lands suffer from an absence of management
4.1.8 Issue: Co-ordination between chiefdoms
4.1.9 Issue: Need for capacity building, within communities and within government
4.1.10 Issue: Violating of settlement pattern in resettled areas due to lack of monitoring and evaluation

4.2 Community Participation and Involvement
4.2.1 Issue: Need for meaningful community participation

4.3 Allocation of Land Rights and Uses on SNL
4.3.1 Issue: Non-rational allocation of land to different uses
4.3.2 Issue: Increasing disregard of proper procedures in the allocation of land
4.3.3 Issue: Shortage of arable land and rangelands
4.3.4 Issue: Failure to take into account the size of household
4.3.5 Issue: Arbitrary allocation of land to married sons and daughters
4.3.6 Issue: Land use rights for unmarried citizens
4.3.7 Issue: Acquisition of land by inheritance
4.3.8 Issue: Unfair deprivation of land rights
4.3.9 Issue: Land Rights for evicted squatters
4.3.10 Issue: Relocation of resettled homesteads by community elders
4.3.11 Issue: Under-utilized land resource
4.3.12 Issue: Under-utilization of farms registered in Ingwenyama in trust for the Swazi Nation

4.4 Resolution of Disputes, Uncertainties about Jurisdiction and allocation of land by chiefs
4.4.1 Issue: Disputes over chiefdoms boundaries
4.4.2 Issue: Resolution and management of legitimacy disputes within a chiefdom
4.4.3 Issue: Dual Chiefdom
4.4.4 Issue: Lack of effective authority/leadership in some areas that are directly under the King, hence do not have a Chief
4.4.5 Issue: Indiscriminate allocation of homesteads in resettled areas

4.5 Compensation and Treatment of People Affected by Resettlement
4.5.1 Issue: Defining the objective and scope of compensation
4.5.2 Issue: Resettlement planning
4.5.3 Issue: Involvement of affected people
4.5.4 Issue: Persons displaced by development
4.5.5 Issue: Resettlement for rural development requested by communities
4.5.6 Issue: Minimising social, cultural and livelihood disruption
4.5.7 Issue: Recognising the needs of vulnerable people
4.5.8 Issue: Establishing a fair and effective mechanism for assessing and paying compensation
4.5.9 Issue: Right to appeal resettlement-related decisions

4.6 Institutional and Legal Framework
4.6.1 Issue: Lack of co-ordination among various institutions involved in resettlement and lack of a central institution charged with the resettlement function
4.6.2 Issue: Lack of consistent and comprehensive legal framework for resettlement

5 INSTITUTIONAL AND LEGAL FRAMEWORK

5.1 Institutional Framework
5.1.1 The Minister of Agriculture and Co-operatives
5.1.2 The Rural Planning, Development and Resettlement Board
5.1.3 Chiefs
5.1.4 Community-level Committees for Land Use Planning and Management
5.1.5 Communal Land Management Committees
5.1.6 Land Dispute Resolution Institutions

5.2 Legal Framework

6 GLOSSARY

PREFACE

Intensifying pressure on rural land, emanating from the rapid rising population and development projects, has revealed the need for widespread resettlement as part of means to rationalise the land use.

Past resettlement exercises have been characterised by inconsistencies in achievements whereby some communities have benefited while others have been left worse than before.

To control these discrepancies and guide future resettlement efforts the ministry of Agriculture and Co-operatives embarked on a programme to develop a National Rural Resettlement Policy. This culminated in the appointment of a Taskforce, in terms of Legal Notice No. 108 of 1999, to prepare the Policy. During its work the Taskforce consulted widely covering relevant individuals, international and local institutions, local traditional administrative structures as well as neighbouring countries. To this end, we are greatly indebted to all those who contributed towards the success of this exercise. Special gratitude goes to FAO for availing its Legal Expert, Dr. Jonathan Lindsay to enrich the document with an international input. Furthermore, work of this magnitude would have not been accomplished without the financial support from the Government of the Republic of China, which we thank most sincerely.

Lastly, I wish to congratulate the National Rural Resettlement Policy Taskforce for completing this task.

N. M. NKAMBULE

PRINCIPAL SECRETARY

Ministry of Agriculture and Co-operatives

PREAMBLE

At the start of the new millennium, one of Swaziland’s most important assets - its rural land - is facing unprecedented threats.

Arable land is disappearing rapidly, even as the communities that depend on it for their livelihoods are growing at an accelerating rate. Soil erosion, haphazard location of non-agricultural activities, outdated grazing practices, expanding population and the changing needs and nature of rural society – all these factors pose tremendous challenges to Swaziland’s pursuit of sustainable development and food security.

To meet these challenges requires a new vision, a new commitment and a new strategy. This Policy is an effort to define that vision, to mobilise the needed commitment, and to establish a sensible, effective strategic framework for sustainable land management and resettlement.

Central to the vision of this Policy is the word "resettlement." Resettlement has had varied meanings in Swaziland. Historically, it has often referred to efforts to re-arrange land uses within rural communities. The emphasis has been on correcting or preventing the often haphazard allocation of land to homesteads, cropping and grazing, so that arable land is not wasted, erosion is minimised and service provision is facilitated. This understanding of the word "resettlement" remains very strong today in rural Swaziland, and is the main focus of this Policy.

"Resettlement" is also used, especially in modern times, to refer to the movement of people because of development activities, such as the construction of dams. In some ways, this type of resettlement is beyond the scope of this Policy. However, especially when it comes to questions of compensation and institutional arrangements for deciding the shape of future settlements, there are many common issues. Therefore, many of the principles and policies enunciated in this Policy apply to this type of resettlement as well.

Whether resettlement involves "re-arranging" land-uses within a community, or "moving" communities from one place to another to allow for needed development activities, rural resettlement is never an end it itself – it is a tool for achieving certain objectives, such as the betterment of livelihoods, the improvement of land uses and national economic growth.

In the past, the effectiveness of resettlement has been limited and successes have been difficult to sustain. There are many reasons for this. Resettlement has usually been top-down in its approach, failing to take fully into account the needs, knowledge and aspirations of local people. There has not always been careful attention to whether the benefits of resettlement justify the costs of the model being used in many locations, and in modern times these costs have increased dramatically. Traditional and government institutions entrusted with overseeing the resettlement process have been constrained by the absence of suitable legislative backing.

These problems, along with others discussed elsewhere in this document, have become more acute in recent years. There are increasing signs that the assumptions underlying resettlement need rethinking in light of modern conditions, along with a reorientation of the main strategies.

It is a fundamental premise of this Policy that the role and potential of resettlement in modern times can only be meaningfully understood within the overall context of rural governance and land management. The vision of this Policy, therefore, looks beyond resettlement narrowly defined, towards the more profound task of defining an overall framework for sustainable land management in rural Swaziland. As such, it focuses on:

the goal of improving land use in rural Swaziland in order to enhance sustainable livelihoods;
the correction of existing land-use problems through participatory planning by all stakeholders, including the relocation of sub-optimal land uses where it is economically and physically feasible, socially acceptable and urgent to do so;
the prevention of future land-use problems through universal introduction of better land planning tools and compliance mechanisms in rural areas to ensure that land use is done wisely and that plans will be respected; and
ensuring that affected people are at least as well-off after resettlement as they were before.

1 INTRODUCTION

1.1 BACKGROUND

Swaziland as a small country covering 17,364 km² has land as the most valued and strategic natural resource, crucial to the development. Judicious use of land is important for various purposes, but critical for agriculture which is the backbone of the national economy, with over 75% of the population deriving their livelihoods from agriculture. Rural land comprises about 75% of the total land surface of the country.

1.2 Land Resources

Prime arable land constitutes about 10% of the total country's land area, and the rest is shared among grazing, settlement, forestry, urban and other small uses. In terms of the present land use, subsistence crop agriculture occupies about 12%, commercial crop agriculture 6%, grazing land 69.1%, plantation forestry 8% and the remainder is under other uses.

Degradation of land resources in the country is increasing with rising human and livestock population. Evidence from various studies has shown that unsustainable use of land is the most critical factor contributing to erosion, resulting from practices of overgrazing, road construction, deforestation and urbanisation. Land degradation has manifested itself in the soil erosion, reduction in biological diversity and decline in the productivity of the land.

In the country, erosion is most evident on the communal grazing areas, and this condition reflects the limited control on stocking rates and land management practices. Since there are no restrictions on the number of livestock each farmer should keep in order not to exceed the carrying capacity of rangelands, farmers on SNL try to maximise numbers for optimum benefits. Soil erosion is less pronounced on cropland due to the use of conservation measures.

1.3 Population

The population grew at a rate of about 2.6 percent per annum during the past century, and 2.7 percent from 1986 - 1997. This has resulted in a population of more than ten times that in 1904. Consequently, the natural wealth per capita is less than one - tenth that of a century ago. Our land resource is therefore much less plentiful for each of us than it was for our ancestors. Given the size of Swaziland, approximately 17 364 000 hectares, the land size per capita in 1986 (population size was 681 000) was 2.55 ha. and in 1996 (population had grown to about 1 000 000) the land size per capita had shrunk to 1.74 ha/head. The land size per capita continues to decline with the population increase.

1.4 Settlements

There are three main patterns of rural settlement. The most common pattern is the scattered type, where homesteads are scattered all over the landscape. While this type is good in that homesteads are located close to their fields and the distance apart among homesteads allows them 'breathing space' and privacy, its major undoing is the difficulty and high expense in the provision of various services. Usually, this settlement type is referred to as the traditional method of Swazi settlement.

Another settlement type introduced by the colonial government under the Native Land Settlement Scheme is the compact settlement or 'village type’. Here, homesteads are clustered together on a designated site, usually a marginal or non- arable piece of land. It becomes easy and cost effective to provide services in this type of settlement. Nonetheless, homesteads are usually situated far away from their fields. Rangelands in most cases are designated above the homesteads or village.

The third pattern of settlement is the one commonly referred to as the Rural Development Area (RDA) type where homesteads are not necessarily organised in a village type. Normally, homesteads are located on marginal or non - arable land just below a mountain or hill and the homesteads could display a linear or cluster pattern depending on the local topography. The homesteads are less scattered in this type. Consequently, services and infrastructure provision is not difficult and less expensive.

1.5 Land Tenure

Land availability evolves around land ownership, which makes the knowledge of the land tenure system and distribution a crucial factor in planning. The land question in Swaziland dates back to the Land Partition Proclamation of 1907. At the beginning of the century, almost all land was under control of non - Swazi citizens in the form of concessions granted to farmers, traders, missionaries, and mineral prospectors by successive Swazi Kings in the last two decades of the 19^th century.

Through the 1907 Proclamation by the British Administration, most of the concessions were converted to freehold title deed holdings. The proclamation led to a situation whereby one third of the concession land was set aside for exclusive use of the Swazi Nation. This land was held in trust by the Ingwenyama for the Swazi Nation and was referred to as the Swazi Area, which name was later changed to Swazi Nation Land. The 1907 Land Partition Proclamation gave birth to the three major forms of land tenure, namely: freehold title deed holdings or Title Deed Land (TDL), Swazi Nation Land (SNL) and Concession land.

A number of schemes, aimed at buying back Title Deed Land to Swazi Nation Land, were instituted. The schemes were necessary as a result of the land pressure on the one – third, part of the country where 80% of the population was living. The schemes instituted included the Native Land Settlement Scheme of 1946, the Lifa Fund of 1948 and after independence the Land Purchase Programme of 1970, recommended by the Hobbs Land Commission of 1969. All Title Deed Land that was purchased back through these schemes was registered in the name of the Ingwenyama in trust for the Swazi Nation. This meant that legally, it remained Title Deed Land, but effectively it became Swazi Nation Land.

On Title Deed Land, access to land is through purchasing or leasing the land. In the case of Swazi Nation Land, access to land is gained through kukhonta to a chiefdom because the land is in the custody of chiefs who, in council, have the authority/mandate to grant user rights to an individual. Currently, kukhonta is open to married couples who have to raise a family. However, unmarried women who have kids can khonta through one of their male kids. A family is normally allocated homestead site, arable land and allowed access to communal resources like rangelands, forests for firewood, rivers for water, and other land use.

Some of the major concerns about SNL relate to insecurity of tenure and the fact that land cannot be used as collateral to secure loans by individual farmers. The chief's ability to banish people from a chiefdom, while rare, can occur and it contributes to insecurity of tenure. Since individuals on SNL do not have a title, land is not transferable. From an economic perspective, SNL cannot be treated as an economic asset, at micro level.

Title Deed Land is clearly regulated by law and land use guidelines, especially within municipalities. In rural areas such land is often used as farm land where commercial farming and livestock ranching is practised. While the majority of these farms are highly productive, there are instances where farms are under-utilized.

1.6 Rural Resettlement Experience

Since independence, rural development has been a major focus of government to raise income and living standards of communities. However, rural areas have remained relatively deprived and in recent years, poverty has become a major concern.

Due to these problems, the country has, in the past, attempted to solve these problems through a variety of approaches. Rural resettlement has been adopted as a component of rural development, and has a long history in the country, dating from the 1950s. Resettlement of people involves relocating them to new designated areas, and can be either voluntary or involuntary. In Swaziland, various types of resettlement have been undertaken, for a variety of objectives and goals. There are four types of resettlement that have been undertaken:

1.6.1 Purchased Land Resettlement

This type characterized the earliest form of resettlement, beginning during the colonial era with the Native Land Settlement Scheme in the 1940s. In this case, freehold farms were purchased by the government to resettle people, who were relocated to previously unutilised or under-utilised land. Such people were either farm workers or squatters on purchased land. The major objective of this type of scheme was to reduce land pressure elsewhere by resettling people on under utilised freehold farms.

The end result was that the farming systems and cropping patterns were not very different form those on SNL. While some communities under this scheme have realised the benefit of infrastructure and service provision such as domestic water, others have not. Since 1991, the government has not given priority to the extension of the programme. Future purchase of such land may focus on the productive use of large-scale commercial projects.

1.6.2 Rural Development Area Type (RDAP)

This type of settlement was undertaken by the Ministry of Agriculture under the Rural Development Area Programme and carried out under the general supervision of the Central Rural Development Board (CRDB). The purpose was land consolidation in order to improve land use and also to make provision of infrastructure relatively less expensive. Under this type, re-organization of land use involved the delineation of arable, grazing and residential areas within already settled communities.

This Programme was governed by the Swazi Administration Act of 1950. The approach was based on the assumption that production levels in the rural areas were constrained by improper land use, lack of inputs, knowledge and infrastructure. However, it became evident that even where these 'technical' inputs were successfully provided, production has not increased markedly as expected. It is now accepted that production in rural areas is not merely constrained by technical factors alone. Rather, it is also socio-economic environment, issues of governance and capacity of communities to take charge of their own lives and be able to sustain their livelihoods after resettlement

1.6.3 Irrigation Scheme

In other situations, people have been resettled because of the implementation of large - scale irrigation schemes, which have necessitated the resettlement of people. These schemes have been largely confined to sugar cane and citrus irrigation schemes in the Lowveld.

Since agriculture on SNL is predominately rain fed, it is typically seasonal with low levels of production. However, due to changes in labour requirements and population pressure, there is a need to increase production by shifting to a more intensive and efficient use of land resources. Thus, irrigation in the country will continue to be considered as one of the appropriate ways to intensify land use, because controlling water extends the growing season. Thus, provision of water for irrigation purposes can be expected to be part of future resettlement programmes.

1.6.4 Displacement Scheme

This type of scheme is generally regarded as characterising the cause of resettlement rather than a 'type' of resettlement. In this case, people were displaced by development project, such as roads, dam, and buildings. Displaced people were often given limited compensation and absorbed within, in most cases, the neighbouring SNL. This type of scheme will continue to occur in future where major development project may be planned. However, they will occur within a new climate where full compensation will have to be made.

Despite the differences between the various types of resettlement, each type has typically been characterised by a "Tri-Partite Land-Use Model". This model has involved the following elements:

Identification of the best arable land, and its designation for field crops.
Designation of lower potential land for grazing.
Location of dwellings on land of poor potential.

Some variations of this model have involved efforts to cluster homesteads and other structures in village-like settlements. In other cases, the configuration has been different, with settlements arranged in lines along roads or at the foot of hills.

1.7 Institutional and Legal Framework

Since the country has a dual system of land tenure and administration, with people operating in both customary and market system, there is a need to rationalize lines of authority in administration and laws. In the absence of clear guidelines people have taken the 'law into their own hands.' This is evident from the rampant selling of communal land, an illegal act.

Under SNL in resettled areas, it has emerged that rules and regulations have not been observed. Chiefs and other authorities have given permission to people to build homesteads on land that is not designated for settlement. In some cases, chiefs have also been implicated in 'selling' SNL, especially those in communities adjacent to urban areas, where the peri-urban informal settlements are growing at an alarming rate.

These regulations have not been adhered to and the institutional structure meant to enforce regulations have broken down. Such non-observance of rules and laws indicates that there is some fundamental features in the whole system of governance, especially at the local level on SNL. There is thus a need to develop clear institutional and legal frameworks that will address these shortcomings and make land management systems efficient.

1.7.1 Institutional Framework

The central institutions responsible for rural resettlement are the Ministry of Agriculture and Co-operatives and CRDB.

1.7.1.1 Central Rural Development Board (CRDB)

This body was set up by His Majesty’s Order-in-Council No.4 of 1954, charged with the tasks of making "area arrangements and organizational work necessary for the effective planning and implementation of all Rural Development projects" (emphasis added) on SNL; a parallel body, the Natural Resources Council, established under the Natural Resources Act No. 71 of 1951 had similar responsibilities in respect of the conservation of natural resources in the freehold tenure areas.

The actual role of the Board and its Officers was to initiate plans for both the Land Purchase and RDAP Resettlements, to co-ordinate their implementation and liase with chiefs and MOAC and other technical Ministries. They typically worked with local resettlement committees made up of imisumphe, and with them drew up ‘maps’ for communities on which grazing, residential and arable areas were drawn. Such maps specifying land use were made without full benefit of the land use planning expertise available. The maps were typically lodged at CRDB HQ in Mbabane and were thus not available locally to allow for monitoring or to settle later disputes, for example, as to where newcomers might settle.

1.7.1.2 Ministry of Agriculture and Cooperatives (MOAC)

This is not only the central government body dealing with all aspects of rural development but its front-line extension personnel in agriculture and veterinary are the most extensive on the ground of all civil servants. Problems of co-ordination and unclear responsibility do arise in some areas, especially programmes that are complex and multi-dimensional like resettlement. Sometimes, these occur between departments of the Ministry. Thus, it is not clear how the land use planning section (LUPS) advice about land use at community or regional level, above that of any single project gets passed on to extension staff or Rural Development Officers (RDOs) who would be relied upon to communicate this to communities. The LUPS itself is thin on the ground and short of experienced personnel of the type that would be required for more appropriate and complex resettlement planning.

Given that a central part of the logic for resettlement is to provide the basis for more sustainable agriculture, the separation of natural resources and environment matters from agriculture to other ministries makes co-ordination difficult, unless there are specific provisions for inter-Ministerial co-operation.

One particular gap results from the fact that there is no set of formal local government bodies in neither the country nor a Ministry responsible for them. That means that there is no single institution with the direct responsibility for the provision of rural physical, economic and social infrastructure and the co-ordinated spatial planning of these facilities. There are separate specialist responsibilities for providing dip tanks, tapped water, clinics, etc, although none at all for commercial infrastructure.

1.7.2 The legal framework of resettlement

There are basically three pieces of legislation relating to resettlement, and they are:

1.7.2.1 Settlement under the Swazi Land Settlement Act, No.2 of 1946

Resettlement stricto sensu means the resettlement of Swazi nationals on TDL which had been purchased from non-Swazi nationals who had obtained the land during the late 19^th and early 20th centuries under the regime of concessions, ratified and clarified by the Concession Partition Act No.28 of 1907. This programme of resettlement was governed by the Swazi Land Settlement Act, No.2 of 1946 and rules made thereunder.

Land settlement was placed under the MOAC. The act is still on the statute books so, although not used at present, it cannot be ignored in any survey of existing law. It also continues to exert an influence on the legal arrangements for various forms of settlement existing at present.

Under the Act, persons can only reside on, cultivate or use land within a settlement with the written permission of the Principal Secretary MOAC (PS) who in practice delegates these powers to officials within the Ministry. Persons without such written permission are prohibited from so residing in a settlement. Allocation of land to settlers is to be made by the PS after consultation with the induna appointed by His Majesty to exercise such powers within an area of settlement as are provided by the Act and rules and a grant or cancellation of a permission to occupy land is to be on such terms and conditions as may be prescribed by the rules.

Land may be allocated for allotments, communal grazing and building. Building by residents may only be undertaken with the approval of the PS who may order the demolition of any such building.

The PS may issue instructions, to be obeyed by settlers, as to the manner of cultivation of agricultural or garden crops, the kind of crops that may be grown and the use of fertilisers. Settlers are required to maintain in good order and condition conservation structures. No stock may be kept otherwise than with the permission of the PS who inserts in each certificate of occupancy the maximum number and kind of stock allowed to graze on the communal grazing area.

1.7.2.2 Settlement under the Swazi Administration Act

This form of settlement involves the relocation of the homesteads or at least the buildings on the homesteads on SNL from the traditional spread-out pattern to a more planned and ordered pattern to facilitate the provision of services to residents on SNL and to allow for more ‘rational’ and planned land use with the aim, inter alia of combating soil erosion. This is governed by the Swazi Administration Act, No.79 of 1950 and two Orders made thereunder by the Ngwenyama in Libandla; Order No.2 of 1953 making provision for the construction and protection of anti-soil erosion works and Order No.4 of 1954 establishing and empowering the Central Rural Development Board (CRBD) to manage land use, conservation and settlement schemes on SNL. Tenure relations are governed by Swazi law and custom.

Control of Swazi Nation Land is vested in the King. Under the Swazi Administration Act, the King may appoint chiefs for any specified area or areas of Swaziland. The King and all chiefs, the latter acting "in conjunction with" their libandla, shall exercise any powers conferred on them by the Act in accordance with Swazi law and custom, provided such Swazi law and custom is not incompatible with any other law or clearly injurious to the welfare of the Swazis".

Section 10 of the above Act confers extensive powers on the King to issue orders to be obeyed by Swazis, inter alia, in respect of SNL to regulate land use; grazing; and the movement of stock; to prevent soil erosion; and to:

"provide for the harmonious and co-ordinated development of Swazi areas, including, where necessary, the settlement or resettlement of any part which has already been settled, in such a way as will most effectively tend to promote the health safety, order, amenity, convenience and general welfare of the Swazi people".

Two amendments to the Act in 1979 conferred further powers on the King which are relevant to settlement. The first provided that he may:

"at any time make an order, containing such conditions as he may consider appropriate for the removal of any person or any of his dependants living with him from one Swazi area to another Swazi area…"

and the second provided that:

"no person shall, without the permission of the competent authority (a person appointed by the King for purposes of administration in a Swazi area, including a chief) build a homestead in a Swazi area or remove such homestead from one place to another in any Swazi area…"

It is worth noting that the 1950 Order has been replaced with the Order of 1998.

1.7.2.3 The Farm Dwellers Control Act, No.12 of 1982

Farm dwellers are squatters, that is, persons residing on TDL with no legal right to be there, legal right being assessed in accordance with Roman-Dutch law. Such persons may once have worked for the farm-owner and after ceasing to work on the farm may have remained living on the farm. Alternatively, they may be persons who are descendants of persons who were living on the land at the time of the Concessions Partition Act, No.28 of 1907, or indeed at the time a concession was first granted who should have vacated the land but did not and were tolerated by the settler.

Either way, the object of the Act, a revision of an Act first passed in 1967, is to give farm dwellers certain rights to remain on the land in accordance with an agreement that must be entered into between the owner (which includes the manager) and farm dweller. The farm dweller may only be ejected from the farm if he commits a material breach of the agreement; commits an act which the tribunal, set up to police the farm dweller regime considers makes his continued residence undesirable; or that the farm is reasonably required for intensive cultivation and that the alternative accommodation is available and the farm owner has made reasonable arrangements to pay compensation for disturbance. Tenure relations vis-à-vis the owner/ manager are set out in the Act and are based on ‘modern’ that is, Roman-Dutch law while inter se, are based on Swazi law and custom.

The Act does not apply to SNL. Thus, in cases where the government or Tibiyo has taken over a farm from a non Swazi Farm-owner and the land has reverted to SNL, those persons living on the farm and potentially therefore persons coming within the scope of the Farm Dwellers Act cease to be so and where they are, on occasions, relocated, this is done either as administrative matter by the farm managers or under the auspices of the CRDB. It appears that there may be some formal agreement concerning the occupation rights of the farm dwellers vis-à-vis the farm owner but inter se tenure relations are governed by Swazi law and custom.

There are many persons residing on farms without a right to be there who have not signed an agreement under the Farm Dwellers Act and who are therefore squatters in the full legal sense of the word. Some of these persons have resided in the same place for many years. While as a matter of strict law, such persons could be ordered to vacate the land or even be forcibly removed from the land, as a matter of common sense and elementary justice, it might be difficult to act in such a way against such persons. If they are to be moved, it would be more appropriate to see any such programme as resettlement, governed as far as possible by the same principles as any other programme of resettlement.

1.8 Objectives of Past Rural Resettlement Efforts

Resettlement in its different forms has had different, though closely related, objectives. Where the emphasis is on re-organising uses within already existing communities (what is referred to above as RDA-Type Resettlement), the objectives are usually explained in terms of:

Improving agricultural and livestock production by altering patterns of land use;
Reducing soil erosion and promoting environmental sustainability; and
Making it easier to provide rural infrastructure and services by reducing the "scattered" nature of rural homesteads. Among other things, this allows services like clinics, schools and businesses to be located closer to one another.

In the case of Purchased Farm Resettlement, irrigation schemes or resettlement of people displaced by development projects, the triggering cause of resettlement is often different from the RDA-Type. In Purchased Farm Resettlement, for example, the motivation may be to reduce population pressure elsewhere. In the case of development projects, the main motivation is to ensure displaced people have a place to move. However, the objectives that guide the design of new settlements even in these instances often match the three objectives listed above: improved production, environmental sustainability, and clustering of households and services.

Some of the lessons derived so far from the rural resettlement experience call into question whether resettlementstrategies have been well suited to meeting these objectives, as is described in the next Section.

1.9 Rationale for a New Rural Resettlement Approach and Policy: Lessons Learned and the Way Forward

The problems underlying the various approaches so far to rural resettlement have not diminished over time; if anything, Swaziland faces a more acute crisis with respect to the sustainable use of rural land than at any time in its history.

More and more people have to depend on a dwindling land resource. The increase in population results in more rural land being put to residential or homestead use thus reducing available grazing land, whilst livestock numbers are increasing at the same time. The average cropland area per homestead is also declining since a fixed amount of arable land has to be shared by more families. Marginal land on steep slopes is being put into cultivation, further accelerating the rate of land degradation.

The alarming competition for finite land by different land uses is increasingly creating enormous pressure on land resources and demand for land rises with high population growth rate. The high demand for land has led to land acquisition and allocation procedures being short-circuited or flouted and in the process some community leaders exploit the situation to enrich themselves. Even resettled areas have succumbed to the intense pressures created by the demand and competition for land. The legislative framework as it currently exists has not helped in ensuring that land use plans in resettled areas are adhered to.

Yet the persistence and increasing severity of these problems does not mean that the answer is simply to redouble efforts to implement policies and strategies from the past. Swaziland’s experience with rural resettlement so far offers very valuable lessons that must be taken as the starting point for any new approach that is responsive to present day realities. Amongst these lessons are the following:

Resettlement will not be successful unless the benefits outweigh the costs. Past experience shows that resettlement should be carried out only if the developmental benefits are clear and compelling in specific instances, and not for the mere sake of reorganizing homesteads and land uses to make settlements appear more orderly. This is particularly important in modern times because a significant movement of homesteads is likely to be costly, due to increasing use of permanent construction material and other investments.

The technical assumptions underlying previous resettlement efforts need to be examined on a case-by-case basis. Modern approaches to land use planning and management increasingly question the extent to which older resettlement techniques lead to cost-efficient provision of services. Moreover, there is evidence that in some cases, a clustering approach may not lead to the expected release of more arable land, or to increased environmental sustainability. The point is not that these assumptions do not hold true anywhere, but that they are truer in some cases than in others. They need to be "examined" rather than "assumed".

No single model of land use is applicable everywhere. The blanket application of a tri-partite model or any other model is not justified. There is a need for a flexible planning approach that takes into account the specific needs and social, economic and environmental context of each community. Not every community will need resettlement in order to greatly improve land management practices. Other communities might theoretically benefit from reorganization of land uses, but it may simply not be feasible to implement this when social and economic costs are taken into account. Given the variations across the country in terms of what is needed and what is feasible, it will be important to tailor resettlement approaches to meet local realities, and not to impose pre-conceived blueprints.

Effective land management strategies require the sustained participation and support of all stakeholders. Resettlement strategies need the support of the people who are affected by them. Past experience has shown that if the people do not understand or believe in the benefits that resettlement is supposed to bring about, they will not have sufficient incentive to comply with land use plans, however technically sound they may be. Therefore, the emphasis needs to shift from a top-down process to one that combines outside technical expertise with local decision-making and ownership.

A weak institutional and legal framework can undermine implementation and sustainability. Many resettlement plans have come unravelled due to institutional and legal weakness and confusion when it comes to ensuring compliance, monitoring and dispute resolution.

In light of the continuing problems, and in view of the lessons provided by past resettlement experience, the development of a policy on rural resettlement has become imperative. The Policy that is set forth in the following pages does not promote rural resettlement as an end in itself, or even as a tool that is appropriate to all circumstances. Instead, the Policy is primarily designed to facilitate a holistic approach to the planning and sustainable management of land resources at the community level. It is based on the rationale that:

In all rural communities, there is a compelling, urgent need for planning and locating land uses in order to meet the goals of increased arable land, less erosion and better provision of services.
To the extent necessary and feasible, meeting this objective in many communities may involve some relocation of existing uses (homesteads, farming and grazing).
However, even in communities where extensive relocation is not necessary or is impractical for some reason, it remains essential to put in place a plan for the future, one that ensures that future expansion or development is not haphazard and does not aggravate the problems this Policy is designed to address.

In other words, this Policy focuses not only on fixing what is currently wrong, but also on preventing future problems.

1.10 The Policy Context: Review of Other Policies

The policy is part of a broad co-ordinated public policy framework emanating largely from the long-term (25 years vision) of the National Development Strategy (NDS)and the Economic Social Reform Agenda (ESRA). This policy should compliment the National Land Policy to effectively deal with land issues in this country. The guiding principle is that all citizens should have access to land and use such land efficiently and sustainably for present and posterity.

Other public initiatives include the development of the Swaziland Environment Action Plan which is also concerned with devising a series of action plans intended to structure a consistent approach to land and environmental management. The Livestock Development Policy aims at introducing 'intensive production technologies and improved management practices based upon community participation'.

Since land degradation particularly in rural areas, is caused by a complex series of interdependent factors, the government has developed the Sustainable Land Management Programme. This programme is a co-ordinated approach to land management and attempts to link government, traditional community structures and non-governmental organizations (NGOs). It further aims at developing community based land management capabilities for sustainable use of range resources through adoption of sound policies, training and participation of chiefs and community members in range management and planning. Furthermore it attempts to develop community capability to rehabilitate degraded land with appropriate conservation measures and to monitor and control erosion. Other related initiative include the Biodiversity Strategy and Action Plan (BSAP) that aims at promoting genetic and ecosystem diversity as well as to arrest desertification.

Some examples of related polices:

1.10.1 The National Land Policy

The policy is being developed together with a number of other related initiatives emanating from the short-term development objectives outlined in ESRA and the long-term objectives as spelt out in the NDS. The goal of the national land policy is to address and redress land matters with a positive framework that inspires public confidence and encourages development towards the vision of national development. Its provisions include proposals on tenure and land use, which are central to resettlement, and they include specific proposals for dealing with resettlement.

1.10.2 Constitutional Review Commission

The constitutional arrangements of a country to some extent determines the quality of governance. In Swaziland, both traditional and modern systems of government with their often conflicting values and philosophies, have shaped the present day national political processes, policies and activities since the repeal of the 1968 Constitution and the subsequent 1973 Proclamation.

His Majesty has set up a Constitutional Review Commission (CRC) to draft a new Constitution that would delineate powers of authority and responsibilities amongst the existing governing bodies and spell out the obligations of each to the nation. These will be vital in providing the context of institutions that can promote participatory rural development and resettlement. The CRC has also specifically considered land related issues.

2 POLICY VISION

The guiding vision of this policy is:

To establish a durable, practical and participatory framework for the planning and sustainable management of land, and the appropriate application of resettlement strategies in rural Swaziland, in order to increase agricultural production, promote the sustainable utilisation of natural resources and improve livelihoods.

The following objectives are designed to guide this vision:

To promote the optimal and sustainable use of land by rural communities.
To assist local communities in identifying land use strategies and resettlement models that are suitable and appropriate for their particular circumstances.
To enable and encourage full participation and involvement of affected communities
To ensure that land allocation in both social and legal contexts is transparent, orderly, legitimate and equitable.
To ensure fair compensation and appropriate treatment of displaced and other affected people.
To strengthen the legislative framework for resettlement and sustainable land management.
To facilitate the resolution of land disputes.
To ensure that the role and authority of relevant institutions are clear and respected.

3 POLICY PRINCIPLES

3.1 Optimum and Sustainable Land Use by Rural Communities

The principle is built on the premise that arable land in Swaziland is very scarce, now less than 10% yet the population growth rate is 2.6% per year. Also, continued unplanned and haphazard land use by communities has become a concern. This principle, therefore, advocates the planned, rational utilization of land. Planning should be based upon an appropriate mix of participatory and technical tools (such as land capability assessment). The principle further proposes the promotion of sustainable practices like crop rotation and rotational grazing, where appropriate, and use of conservation measures.

3.2 Appropriate Choice of Land Management Strategies and Resettlement Models

The success of any rural land management or resettlement effort depends entirely on the selection of strategies that are appropriate and suitable to a particular area. Experience within and beyond Swaziland has shown that areas vary in terms of ecological zones and topography, economic and social characteristics and population density. Hence, different approaches are needed, tailored to local realities. The generally applicable rule is that any approach adopted in a particular area should aim to ensure that arable land is reserved for cropping, with non-arable land allocated for human settlements and grazing. Furthermore, land uses should be organized as much as feasible to allow cost effective and sustainable development of infrastructure and provision of services. But ultimately, what approach will work or will meet the legitimate needs and aspirations of local communities and the country at large will require careful judgement on a case-by-case basis, with full participation of all stakeholders.

3.3 Sustained Community Participation and Involvement

Experience has shown that community participation and involvement is essential for cultivating and promoting commitment and ownership of land management and resettlement processes. In the past, participation and involvement of affected communities has been under-emphasised.

The principle is that there should be full participation and involvement of the affected communities.

Implementation of this principle also requires building the capacity of communities and officials to engage effectively in participatory planning processes. For this, continuous education is very important. People need to be provided with civic education related to the various aspects of rural resettlement and land management.

3.4 Transparent, Orderly and Legitimate Land Allocation

The land allocation system in many communities has been faulty, with the result that allocation of land to different uses has not proceeded in an orderly or appropriate manner. In some chiefdoms, land allocation processes are not well defined; procedures are not followed; and key players fail to exercise their powers. There is no transparency and unauthorized people allocate land haphazardly. Land allocation should be carried out by the rightful authority according to accepted rules.

3.5 Fair, Equitable and Adequate Compensation of Affected Persons

The country does not have a good history of compensation in the past resettlement programmes. Compensation used to be limited to the provision of replacement of land. Recently, it has become necessary for people to be compensated when relocating because of the heavy investments they have made. Compensation procedures should be developed for each and every resettlement exercise to compensation of the affected.

The extent of compensation and mitigation assistance should depend on the degree of disruption and displacement caused by resettlement. The principle is to restore or improve the livelihoods, living standards and conditions of people and communities affected by resettlement so that they are not made worse off than they were prior to its implementation. Where resettlement involves the resettlement of displaced people into an existing "host" community, that community should also be considered to be an affected party as the bringing in of more homesteads could limit their access to communal resources and have an impact on services like schools, clinics and many others.

3.6 Appropriate and Effective Legislation

Sustainable land management and successful resettlement strategies require up-to-date, comprehensive and enforceable legislation. Past experiences have shown that existing laws governing these processes are ineffective, outdated, and characterised by a top-down philosophy. Frequently, the institutional responsibility or mechanisms for implementing the laws are unclear.

The principle is to have sound and updated legislation, implementable and enforceable by defined institutions.

3.7 Efficient Management of Land Disputes

Land disputes occur at various levels, from the local community to the national level. These land disputes can cripple beneficial development activities, including sustainable land management and resettlement.

In this connection, efforts must be taken to reduce the incidence of disputes. The causes of disputes can be reduced to a significant extent by (a) better defining the roles and responsibilities of various actors, so that unscrupulous people are less able to take advantage of uncertainties; (b) clarifying boundaries between chiefdoms; (c) providing better access to information and making sure that decision-making is transparent; and (d) enabling and promoting consultation with all stakeholders throughout the process of planning and resettlement. When disputes arise, it needs to be clear what institution has the power and the responsibility to judge that dispute.

3.8 Ensuring Sustained Monitoring and Evaluation

Past experience has shown that erratic monitoring and evaluation of rural resettlement programmes has been a major set back. Failure at planning stage to incorporate regular monitoring and evaluation mechanisms has been one of the major draw-backs for past resettlement endeavours.

The principle is that monitoring and evaluation of rural resettlement programmes should be an integral part of resettlement process, with verifiable indicators based on programme objectives. Responsibility for monitoring and evaluation should be clearly defined at commencement.

4 POLICY FRAMEWORK

4.1 Sustainable Land Management and Resettlement Strategies

Effective strategies for achieving optimal and judicious land use are urgently needed, in view of the ever increasing population of the country and the finite nature of land.

In an effort to ensure that land is utilized rationally and sustainably all land in the country shall be zoned. Land uses will be spelt out for each category. This will further protect the country’s limited arable land resource.

4.1.1 Issue: The need for effective land use plans in rural and peri-urban areas

Swaziland’s valuable but fragile land resources are under unprecedented strain. Arable land is disappearing rapidly. Human settlements often occur without consideration for infrastructure provision, and there is uncontrolled spread of informal settlements. This is particularly true in peri-urban areas due to intensifying population pressure resulting from rapid population growth and immigration of rural population in search of jobs. Destruction of indigenous forest for fuel wood, building poles and site clearing is another consequence of unplanned and uncontrolled developments.

A critical step in addressing the spread of unsustainable land uses is to develop realistic and effective land use plans to guide present and future activities, using modern technical tools and a participatory approach.

Policy: It is a National Policy that local land use plans be developed, approved and implemented for all rural and peri-urban areas, reflecting the principles and processes set forth in this document. Once the plans are duly approved, they shall be legally enforceable and binding upon all stakeholders, including Chiefs.

Within a community subject to an approved plan, the plan shall govern all land utilization, land allocation, community expansion, grazing and related land use and management issues. Where resettlement in some form is being carried out or contemplated by the community, the plan would govern this process as well.

It is, of course, recognised that planning alone cannot address many of the social, economic and environmental pressures that are contributing to the deterioration of Swaziland’s rural environment. However, appropriate plans will provide a much needed framework for action. Effective plans should be:

Targeted on clear objectives, such as preservation of arable land, prevention of erosion, appropriate location of structures;
Flexible, regulating activity only as needed to achieve the objectives;
Technically sound, yet easy to understand;
Adapted to local conditions;
Acceptable to the community and prepared with their full participation;
Fair; and
Enforceable, with appropriate sanctions for violating a plan.

4.1.2 Issue: The need to put in place a planning process that is technically sound, institutionally strong and participatory

Designing a land use plan that works for a particular community means developing a plan that is both accepted by the people and that reflects modern technical thinking. This in turn requires putting in place a planning process that combines technical and participatory approaches, and that has a strong institutional and legal foundation. Such processes are currently non-existent in Swaziland.

Policy: It is a National Policy that local land use planning processes shall be established, to be carried out with involvement of all stakeholders, including both technical experts and local people.

A participatory decision-making process should be established within each community, to ensure that plans reflect local realities, priorities and knowledge. At the same time, the planning process should draw upon technical expertise and tools, such as modern range management techniques, the agro-ecological zoning (AEZ) concept and land capability studies in order to facilitate the sustainable use of rural land. (See Section 3.2 and Chapter 4).

4.1.3 Issue: Adapting resettlement strategies to modern conditions and local circumstances

In the past, rural land use planning has primarily been associated with various resettlement programmes. Resettlement, in the sense of relocating existing sub-optimal uses of land, can be an effective tool in combating the problems of unsustainable land use.

Resettlement can take many forms, from the simple relocation of grazing areas to the full-scale re-organization of a community from a ‘scattered’ household pattern to a ‘village’ pattern. No single model of resettlement will be applicable in all places. Areas vary in terms of ecological characteristics and topography, social and economic conditions, and in terms of the types of interventions they require.

Previously, models of resettlement have tended to be applied from outside in a top-down manner. Insufficient care was taken to ensure that the benefits from resettlement justified the often substantial economic and social costs. If this tendency continues in the future, given the rapidly changing nature of rural Swazi culture and economy, resettlement will be increasingly difficult to implement and to sustain.

Policy: It is a National Policy that, to ensure effective use of resettlement strategies, such strategies should be carefully tailored to local circumstances, targeted on achievable objectives, and based on a realistic assessment of benefits and costs.

Wherever resettlement is contemplated, there is a need to identify priorities and to make sure that any resettlement that is undertaken is closely tied to identifiable and verifiable objectives. For new settlements, a ‘village clustering’ model may be very desirable and feasible. For existing settlements, the choice of a village-type settlement or some other arrangement will require an assessment of whether benefits justify the costs.

What degree of resettlement is needed, appropriate and feasible for a particular community has to be decided on a case-by-case basis - a uniform, top-down approach will not work. The decision to undertake resettlement, whether on a limited or extensive scale, should emerge from the planning process described in (b), above.

4.1.4 Issue: Using plans to guide future allocations, even in non-resettlement areas

Resettlement in the past has mainly emphasised the rectification of existing sub-optimal land uses. There has been a tendency for plans drawn up during the resettlement process to come unraveled over time. There have been instances where homesteads were resettled and moved to another area. After a while, new homesteads settle in or get allocated the sites which were previously occupied by those resettled.

In areas where no resettlement has taken place or been planned, land use plans have usually not been drawn up in the first place. Hence, the expansion of land uses in these areas has been even more unguided, resulting in the unplanned and haphazard mushrooming of homesteads and other uses.

Policy: It is a National Policy that even in areas that have not been resettled, or where there are no immediate plans for resettlement, allocation of homesteads and other uses should be done on the basis of approved land use plans.

The planned guidance of future growth is needed, whether or not resettlement, narrowly speaking, is contemplated. This Policy is simply intended to emphasize that the plans that are called for in (a), above, are needed in all parts of rural and peri-urban Swaziland. Where plans have not yet been drawn up, local traditional leaders should consult with land use planners for guidance before allocating new homestead or other sites.

4.1.5 Issue: Environmental degradation

In the past, planning for resettlement programmes has not seriously considered the environmental impacts. This has resulted in severe environmental degradation in a number of resettled areas. The absence of conservation measures on rangelands and homestead sites has often resulted in the development of gullies, sometimes with wide-spread deleterious effects on settlements and neighbouring communities. The silt which is generated by soil erosion has negative impacts on aquatic life, water storage reservoirs and rivers resulting in flooding.

Policy: It is a National Policy that an assessment of environmental impacts should be an integral part of planning and resettlement processes.

Where specific expansion or resettlement activities are proposed, a formal Environmental Impact Assessment (EIA) or some variation thereof may be required by applicable law and shall be carried out prior to the activity commencing. Mitigation measures must be prepared and implemented during the resettlement process. Government should have a unit for carrying out EIAs in a cost-effective manner, because currently the cost for undertaking an EIA is extremely exorbitant.

4.1.6 Issue: Encroachment of other land uses into grazing areas

Due to the ever increasing population, land availability for arable farming, grazing, homesteads, burial land etc is declining. This has resulted in stiff competition for the land amongst the different land uses. There is a tendency of expanding the other land uses at the expense of grazing, since grazing areas are considered as no man's land. This is resulted in the encroachment of homesteads in communal grazing areas.

Policy: It is a National Policy that land allocation to the different uses be based on rational decisions, after evaluation by the Land Use Planning Section, and must be adhered to until another evaluation is carried out depending on the need.

4.1.7 Issue: Grazing lands suffer from an absence of management

Sustainable land use requires more than simply designating certain areas for certain uses – it requires that the areas and uses in question be sustainably managed. The absence of such management has historically been a problem particularly in the communal grazing areas of SNL. Such areas are vulnerable to over-exploitation of grazing resources, as they are considered free inputs to animal production. Hence, the desire to graze large numbers in order to maximise profits. The ultimate outcome is overgrazing which leads to denudation and gullying of the rangelands. The absence of effective management institutions at the community level, with the right and responsibility to supervise grazing resources, has accelerated this decline.

Policy: It is a National Policy that the design of effective local grazing management practices and institutions shall be given high priority.

Sustainable grazing in many communities may require some attention to technical issues such as carrying capacity and stocking rates. Other strategies of relieving grazing pressures include promotion of intensive and semi intensive grazing systems, promotion of small stock, and promotion of livestock marketing. But above all, the challenge will be to design institutional and property arrangements, whereby participating people have both the incentive and capacity to manage the resources. At a minimum, this requires the establishment of clear regulations to govern use and maintenance, clear definition of boundaries between communities and criteria for determining membership in the rights-holding group. In some instances, there may be opportunities for subdividing the grazing land and allocating the land to groups of livestock owners or for establishing communal commercial ranches, although this would need to be done in a way that does not disadvantage certain vulnerable members of the community that are especially reliant on common grazing resources.

4.1.8 Issue: Co-ordination between chiefdoms

The land use planning and resettlement activities of one community may well have implications for neighbouring communities. This is particularly true where two or more communities share common environmental resources like grazing, watershed or forest areas, and where the activities in one community may have a direct impact on the adjoining community.

Policy: It is a National Policy that efforts should be made to co-ordinate the planning and resettlement activities of adjoining chiefdoms.

This may require specific attention to resolving points of dispute between the communities in question, for example, where chiefdoms are engaged in disputes over their shared boundary (see 3.4 below).

4.1.9 Issue: Need for capacity building, within communities and within government

The prospects for sustainable land management in rural Swaziland are currently diminished due to a critical shortage of capacity. This shortage has several dimensions. At the local level, effective management requires effective involvement of all stakeholders in planning and implementation. Although local people may often understand their own land problems better than outside experts, their ability to act strategically on the basis of that knowledge and to identify realistic options may be constrained by certain information gaps, or because of a lack of basic exposure to planning and management techniques. Within government, there are well-trained experts, but they are in short supply. Moreover, there is a shortage of reliable, accessible information. Such shortages are certain to become more acute as more and more communities begin to engage in planning, and turn to government for technical assistance.

Policy: It is a National Policy that high priority should be given to strengthening the capacity of communities and government institutions to fulfil their responsibilities with respect to land management and resettlement.

Capacity enhancing steps, such as community-level training, technical and facilitation training for government officers and other human resource development efforts are needed.

4.1.10 Issue: Violating of settlement pattern in resettled areas due to lack of monitoring and evaluation

Monitoring provides means for ensuring that implementation goes according to plan. Similarly, evaluation enables the determination of whether a resettlement programme has fulfilled its objectives or not. Monitoring and evaluation are therefore essential elements for any process. Lack of continuous monitoring and evaluation has resulted in past resettlement programmes failures.

Policy: It is a National Policy that monitoring and evaluation must be carried out continuously by the institution responsible for resettlement. Resettlement plans should be gazetted upon completion, to encourage chiefs to follow professionally developed and implemented land use plans. Should need for altering or revising the plans arise, the institution responsible for resettlement shall see to it that it happens.

4.2 Community Participation and Involvement

4.2.1 Issue: Need for meaningful community participation

Community involvement in RDAP-style resettlement has, in theory, been a prominent feature of programme design. In practice, the role of the community in planning, implementation and monitoring has not always been clear, since resettlement activities have tended to follow the top-down approach. Thorough involvement of affected communities in planning and executing other types of resettlement, as in the case of involuntary displacement by development activities, is also essential.

Policy: It is a National Policy that affected communities have a full and meaningful opportunity to participate in all stages of land use planning and resettlement processes – from conception, through development, to execution and review.

The importance of participation is stressed at several points throughout this document, and is referred to in other Policy statements. It is addressed here in a separate section in order to highlight its centrality to all facets of sustainable land management and resettlement.

Participation is important, not only because it is fair, but because it increases the likelihood of effectiveness. Local people tend to know local circumstances far better than outsiders; their involvement from the beginning may help prevent avoidable mistakes. Local involvement can help create a sense of local "ownership" of the process and the outcome, and hence a vested interest in seeing it succeed. At the same time it increases the likelihood that local people will comply with any rules or plans that are adopted.

To be effective, participation should be:

Continuous, throughout all stages of the process, and not simply an "add on" after major decisions have been made;
Informed and facilitated by technical assistance from government and by easy access to relevant information (see 3.1(h), above); and
Institutionalised, by being endorsed and guided by legislation (see Chapter 4).

4.3 Allocation of Land Rights and Uses on SNL

Allocation of land rights and uses on SNL is increasingly taking place without sufficient attention to land use criteria, and without regard to established rules and procedures. This contributes to the rapid spread of unsustainable land management practices.

4.3.1 Issue: Non-rational allocation of land to different uses

Chiefs have been delegated powers to administer Swazi Nation Land on behalf of the Ngwenyama. A Chief is therefore fully accountable for all development activities in his/her area of jurisdiction. However, there are cases where Chiefs have exercised their powers over land to the detriment of national development. Allocation of land to different uses is frequently not based on rational land use principles. This includes allocation of homesteads on land earmarked for development projects.

Policy: It is a National Policy that a Chief shall not allocate land to new homesteads in an area designated for arable agriculture or grazing, or in an area earmarked for any socio-economic development.

The basic point has already been established in 3.1(d), above, that land allocation needs to be based on duly approved plans designed in accordance with this document. This Policy specifically applies this general point to the exercise of Chiefly power.

4.3.2 Issue: Increasing disregard of proper procedures in the allocation of land

There is an increasing tendency for land allocation to take place outside the normal channels that are recognised as legitimate by custom and by community members. In many communities, there are a number of individuals who each claim to have authority for allocating land ('Kukhontisa"). Currently, some Chiefs, Imisumpe, Bandlancane, and Bantfwabenkhosi allocate land individually and indiscriminately, they khontisa in a way that the land is allocated in exchange for monetary gains (" batsengisa umhlaba"). In addition, due to scarcity of land, some elders demand for money on top of the known procedure of paying a beast. Usually, this money is pocketed by the elders individually. In some chiefdoms, the beast is now in the form of money and it ends up in the chief’s pocket, thus stimulating the desire to allocate more homesteads for more monetary gains.

The growing lack of transparency and disrespect for allocation procedures has grave consequences for sustainable land management, because in the prevailing environment of chaos, there is little likelihood that rationale land use principles will be applied by those allocating land.

Policy: It is a National Policy that land in SNL, including peri-urban land, shall only be acquired and allocated through the process recognised as proper and legitimate by accepted rules.

The proper process of acquisition is through Lincusa, Bandlancane and Bandlakhulu. Bandlancane then verifies the status of sikhonti with the sikhonti’s place of origin. It is upon satisfactory evidence from place of origin that Bandlakhulu accepts the Sikhonti. Bandlancane and Umsumpe and few members of Bandlakhulu who are going to be neighbours of Sikhonti participate in the land allocation ("kufica lifindvo"). Sikhonti then pays a beast to Bandlancane for being accepted. Chiefs should now issue sikhonti with a signed certificate as evidence of acceptance, with issuance of written permission from chief to sikhonti.

4.3.3 Issue: Shortage of arable land and rangelands

There is a growing tendency for some chiefdoms to accept people who khonta regardless of whether land for the three main land uses is available. Usually land is available for homestead siting, but not available for arable and grazing.

Policy: It is a National Policy that before sikhonti is accepted due consideration be given to the availability of land for the three main land uses.

4.3.4 Issue: Failure to take into account the size of household

Land allocation, in particular arable land, tends to be associated with a homestead. Each and every homestead gets the same size of arable land irrespective of the homestead size. Such a situation has forced large homesteads with several households to split into several stand-alone homesteads in a bid to be allocated fields. This has encouraged scattering of settlements when in fact compact settlements would save space.

Policy: It is a National Policy that due consideration in the allocation of land, in particular arable land, take cognisance of the size of the homestead, that is, whether it is a multiple household or single household.

4.3.5 Issue: Arbitrary allocation of land to married sons and daughters

A number of families are now giving land to their married sons and daughters outside the established channels of land allocation. Arable areas are given for establishment of homesteads by these groups. As a result, cropland is individually 'owned' – hence, its distribution to family members is deemed the jurisdiction of the family head.

Policy: It is a National Policy that sons and daughters who need land, should be allocated land by the head of the family in collaboration with the rightful community leaders to avoid the location of homesteads in wrong zones such as cropland and grazing areas.

In case family land is exhausted, sons and daughters, accompanied by the head of the family, should request land from the chief or migrate to khonta elsewhere.

4.3.6 Issue: Land use rights for unmarried citizens

Currently, land use rights are reserved only for married citizens. This practice infringes upon rights of citizens to land irrespective of their marital status. Land use rights does not consider development needs, but only access.

Policy: It is a National Policy that all citizens responsible for raising a family can acquire land through the khonta system. Under Swazi law and custom, the purpose of allocating land has been to provide a means of raising a family. There is a presumption that a husband and wife intend to raise a family, and their entitlement to khonta is based upon that presumption. However, not all of the future generation have the benefit of both parents being present, yet, they must still be cared for. Consequently, any parent who can establish to the satisfaction of the competent authority that he or she is the sole guardian for a child or children can khonta (Draft Land Policy clauses 2.1.1 .b).

4.3.7 Issue: Acquisition of land by inheritance

The inheritance or passing of land rights from parents to children, after the death of parents, is sometimes not adhered to.

Policy: It is a National Policy that the rights to administer land that has not been apportioned are inherited by the family executor, who shall distribute to family members.

4.3.8 Issue: Unfair deprivation of land rights

Increasing abuse of powers by authorities, ignoring the traditional and customary land use rights, has led to unjustified loss of land rights by citizens. Once again, one consequence of the increasing insecurity caused by this flaunting of accepted rules and procedures is to undermine the goal of sustainable land management.

Policy: It is a National Policy that no person will be arbitrarily or unjustly deprived of any lawful right over SNL, and that any deprivation of land rights must be strictly in accordance with the provisions of applicable customary or statutory law. Even cases of failure to comply with rational land management practices, after several warnings, shall lead to deprivation of land rights. However, a self-motivated choice to leave the area remains open.

4.3.9 Issue: Land Rights for evicted squatters

People evicted from chiefdoms are normally received and allocated land in other chiefdoms, while people evicted from farms are dumped in 'concentration camps' and not provided with any land to sustain their livelihood.

Policy: It is a national Policy that people evicted from farms should be accorded land use rights in their original chiefdoms.

4.3.10 Issue: Relocation of resettled homesteads by community elders

In some instances, resettled people have been forcefully relocated for various reasons, some of which are unjustified.

Policy: It is a National Policy that relocation in this situation (as in all situations) shall occur only in accordance with a plan duly adopted in accordance with the principles described in this document and its supporting legislation, including, where applicable, the payment of compensation.

4.3.11 Issue: Under-utilized land resource

A number of areas in the country have prime agricultural land lying fallow because the owner is incapable of utilizing it due to various reasons. Yet, the land cannot be accessed by potential users. In some instances, such land ends up being severely degraded due to livestock overgrazing. This land also frequently ends up being a target for unplanned settlements.

In addition, vulnerable groups including under-aged, elderly, disabled, and destitute people may not be capable of fully utilising the land allocated to them. However, they still retain the land rights over their allocated or inherited land.

Policy: It is a National Policy that Indlunkhulu should ensure that all land under its custody is efficiently utilized.

Individuals with the capacity to utilize larger portions of land should be allowed access to under-utilized land held by incapable individuals through some lease arrangement with the involvement of indlunkulu. This includes land under Indlunkhulu.

4.3.12 Issue: Under-utilization of farms registered in Ingwenyama in trust for the Swazi Nation

Farms registered in the name of Ingwenyama in trust for the Swazi Nation shall be vested in the Minister responsible for resettlement who shall be the sole authority to mandate and operationalize any form of reorganizing land uses therein.

In most cases, farms registered in the name of the Ngwenyama are either under-utilized or idle and individuals or groups interested in utilising them are not aware of procedures to gain user rights.

Policy: It is a National Policy that idle farms registered in the name of the Ingwenyama shall be available for lease to potential users.

It should be clear how the farms are administered or controlled and who the controlling authority is. Public institutions like Tibiyo, Tisuka and various government departments should ensure that national land in their custody is well taken care of and protected from unauthorised use. Furthermore, farm dwellers found in the farm at the time of purchase should be resettled within the farm prior to leasing the farm or government undertaking any project.

The Ministry of Agriculture, in particular, should stamp authority in her farms and not allow neighbouring chiefs to exert any form of influence. If His Majesty hands over a farm to an adjacent chief the Ministry should be informed. This will eliminate the uncertainty that exists regarding some farms as the Ministry will no longer have anything to do with that particular farm.

The Principal Secretary should play his role effectively, in collaboration with 'tindvuna' in the 'tinhlalakahle' in accordance with the Land Settlement Act of 1946, in order to resolve the current authority vacuum in the administration of these settlement schemes.

Notwithstanding provisions of the 1982 Farm Dwellers Act, resettlement of farm dwellers in private farms shall be carried out by the farm owner in collaboration with the Ministry responsible for resettlement. Such an arrangement will not, in any way, interfere with the powers of the farm owner in deciding the use of the farm but assist in the rational utilization of the land.

4.4 Resolution of Disputes, Uncertainties about Jurisdiction and allocation of land by chiefs

Effective management of land issues at the community level is often seriously constrained by uncertainty as to the physical boundaries between chiefdoms, or the identity of the legitimate authority.

4.4.1 Issue: Disputes over chiefdoms boundaries

There has been an increasing number of boundary disputes between chiefdoms, which have already resulted in violence, including loss of lives. These disputes constrain development and prevent effective planning and management. Development initiatives have been blocked by rivalries between Chiefs, each of whom demands that development in an area under dispute be sanctioned by him. Most of the disputed areas have a high density of homesteads because some Chiefs believe that by allocating disputed land to his subjects he substantiates his claim over that land.

Policy: It is a National Policy that chiefdoms’ boundaries be clearly demarcated, cadastralized and rationalised by a gazetted commission.

It should be noted, however, that in several instances it will be necessary first to determine the identity of the legitimate Chief within a particular chiefdom before the demarcation of chiefdom boundaries can be conclusively undertaken (see (b), below).

4.4.2 Issue: Resolution and management of legitimacy disputes within a chiefdom

Some chiefdoms have been fragmented or divided among feuding aspiring heirs to the Chieftaincy who all claim to be rightful successors. In some instances, heavy fighting, resulting in loss of life, has characterised these unstable chiefdoms. Development has been pushed to the periphery whilst squabbling occupies the centre stage.

Policy: It is a National Policy that steps should be taken to identify the legitimate Chief in disputed chiefdoms, and that all Chiefs should nominate their heirs and register them with the King.

There is a need for a concerted and definitive effort to ascertain the authenticity of Chiefs in disputed chiefdoms. In all chiefdoms, the prevention of future disputes will be aided by adherence to a transparent process of nominating successors. Members of the chief's household should be consulted in the nomination process so that they remain aware while the incumbent chief survives. The process of succession for chiefs should be clearly documented.

4.4.3 Issue: Dual Chiefdom

There is a tendency for people to khonta in another chiefdom, without terminating their allegiance to the original chief. This leads to people having more than one chief. In some cases, the same result is arrived at by acquiring more land for the purpose of establishing a homestead for a second or third wife. As this practice becomes more widespread, it adds to the already clouded situation as to the legitimate jurisdiction of chiefs, which in turn has a negative impact on planning and land management at the community level.

Policy: It is a National Policy that no person shall be a subject of more than one chief.

Once an individual decides to move to another chiefdom, Swazi law and Custom dictates that individual bids farewell "Uyavalelisa" to his Chief and returns the land to the "Umphakatsi". ("ubuyisela umhlaba endlunkhulu"). Once he has relinquished land, he acquires rights to land in the new chiefdom.

4.4.4 Issue: Lack of effective authority/leadership in some areas that are directly under the King, hence do not have a Chief

There are areas that do not have a Chief, and are instead directly under the King. These areas are referred to as "emahambate". The main problem is that there is no clear and effective authority in the area to support sustainable land management or resettlement.

Policy: It is a National Policy that emahambate should have a clear and effective authorities residing in the areas.

4.4.5 Issue: Indiscriminate allocation of homesteads in resettled areas

It is difficult to see a clear pattern in some resettled areas due to that land use plans have been violated by allocating new homesteads in areas designated for either arable agriculture or grazing. There are also a few instances where homesteads have been allocated on land reserved for commercial ventures.

Policy: It is a National Policy that a Chief shall not allocate land to new homesteads in an area designated for arable agriculture, grazing land or an area earmarked for any socio-economic development. A Chief shall allocate land various land utilization types guide by a Resettlement Map that shall be technically developed by Land Use Planners. The development of such resettlement map shall be based on ecological principles. A chief who violates the Land Use Plan shall be liable to punishment by the Dispute Resolution Committee.

4.5 Compensation and Treatment of People Affected by Resettlement

4.5.1 Issue: Defining the objective and scope of compensation

Resettlement in any form is disruptive and imposes costs on displaced persons or people living in ‘host’ communities. In some cases, it has the potential for impoverishing and severely undermining the livelihoods of those affected. In the past, recognition of these effects and efforts to address them have been weak and inconsistent. The ill-effects of displacement have often been seriously under-valued and under-compensated.

This problem has been exacerbated by the absence of a uniform standard against which the sufficiency of compensation may be judged.

Policy: It is a National Policy that all persons affected by resettlement shall have their livelihoods, living standards and conditions restored so that within a reasonable time from when they suffered losses and inconvenience, they are no worse off than they were before the process of resettlement began.

This broad Policy statement provides important guidance on both the types of losses that should be taken into account when determining the appropriate level of compensation, and the forms in which compensation may be paid.

With respect to homesteads that settle in areas not designated for settlement, such as road reserves, rangeland, no compensation will be paid in the event they are required to relocate or vacate.

With respect to compound or multiple household homesteads, compensation should be directed to the individual owners of the various structures, not just to have the homestead head given a lump sum.

With respect to the types of compensable losses, if the objective is to restore people to an equal or better condition, then it is necessary to consider loss of any rights to or interests in land; loss of buildings and other improvements; loss of livestock and other animals; loss of income-bearing trees; losses from arable and garden land; loss of rights to access to communal assets like grazing land, wood lots, forests, and the like; loss of sources of income; loss of access to public facilities; costs associated with relocating, etc.

With respect to a self- motivated choice to leave an area the question of compensation shall not arise. However, if the self – motivated choice to leave the area is induced by a project and an individual does not wish to relocate to an identified host area that individual shall be entitled to full compensation that is replacement of his/her property/ possessions.

With respect to the forms of compensation, the principle of restoration suggests that payment in kind is often more appropriate than payment of cash. Thus, where persons are displaced from their land, they should be provided with land that is at least equivalent to the land taken, in terms of productive potential and other factors. In other cases, non-land-based options might be best.

4.5.2 Issue: Resettlement planning

The general need for planning rural land uses, whether or not resettlement is involved, has been addressed earlier in this document (see Section 3.1). Where resettlement is contemplated – particularly where significant displacement of individuals and communities is involved – additional planning considerations come into play.

Policy: It is a National Policy that all resettlement be carried out in accordance with a resettlement plan, formulated and adopted in a transparent and participatory manner.

Different types and degrees of resettlement will require different approaches to planning. In many cases, an abbreviated, simple plan will suffice. Whether simple or complex, resettlement plans provide an essential tool for ensuring, among other things:

that resettlement takes place in an orderly, timely fashion;
that the areas involved are clearly defined;
that the rights and responsibilities of different actors and organizations are clearly spelled out;
that affected populations, both in the displaced and (where applicable) host communities are accurately identified;
that the consequences of resettlement are systematically assessed beforehand and opportunities for minimising dislocation and hardship are identified;
that fair procedures for assessment, relocation, compensation and handling grievances are put in place and are communicated to all concerned; and
that implementation can be effectively monitored.

4.5.3 Issue: Involvement of affected people

Participation has been stressed as a major theme throughout this policy document. In the specific context of resettlement, it is important to underscore the importance of participation once again.

Policy: It is a National Policy that all individuals, families and communities affected by resettlement shall have the right to be informed about, consulted about and to participate meaningfully in the preparation, implementation and monitoring of the arrangements for their resettlement.

This Policy is particularly important to keep in mind where resettlement is being driven primarily by forces from outside a community. That is to say, in the case of RDAP-type resettlement, community participation has long been considered an integral part of the process (though in practice this has not always proved true). With other types of resettlement, however, particularly where large national projects have resulted in high levels of displacement, there has been a tendency to overlook or underplay the importance of participation (although there are also some exemplary counter-examples to this tendency).

For participation to "meaningful" it has to be more than perfunctory. It requires genuine commitment to involving people in decisions that may profoundly affect their lives.

4.5.4 Issue: Persons displaced by development

Fertile areas are continuously being taken over by development projects. While displaced people are allocated land incapable of sustaining their livelihood.

Policy: It is a National Policy that displaced persons should be given land with an equivalent or better production potential. This could include provision of irrigation facilities and other strategies to improve the land productivity. Where this is not possible, efforts should be towards retaining or improving the livelihood of the effected persons.

4.5.5 Issue: Resettlement for rural development requested by communities

Certain communities under the leadership of their chiefs have requested government’s guidance in implementing resettlement in their respective chiefdoms. The primary aim in most cases is to reorganize the land uses so that development could be easy and cost effective. In such cases, some homesteads have to relocate while others remain, thus, some incur no costs while others do.

Policy: It is a National Policy that compensation should be from within the chiefdom. Chiefdom leadership will have to source for funds to pay for compensation from institutions like government, international donors, and development agencies. Homesteads built outside designated settlement area shall not be compensated.

4.5.6 Issue: Minimising social, cultural and livelihood disruption

Resettlement can not only have economic effects; it can seriously disrupt social institutions, cultural practices and livelihood choices.

Policy: It is a National Policy that resettlement will be undertaken in a way that minimises social disruption to either displaced people or host communities, ensuring, to the extent possible and desired by affected people, that existing social and cultural institutions and livelihood systems are preserved.

4.5.7 Issue: Recognising the needs of vulnerable people

(i) Vulnerable groups within a community may need special attention to ensure that their interests and rights are not overlooked during the resettlement process.

Policy: It is a National Policy that special attention shall be directed to the needs of vulnerable groups among the displaced population, such as those below the poverty line, the landless, the elderly, women and children, and ethnic minorities.

There should be a specific effort during the planning process to focus attention on the problems of vulnerable groups. If care is not taken in designing the compensation strategy, for example, there may be a tendency to focus on the more "obvious" losses experienced by people who already hold significant tangible assets. Disruption to the livelihoods of the "assetless" may not get the attention and mitigation that it deserves.

(ii) Vulnerable groups including, old aged, disabled and destitutes may not be capable of fully utilising the land allocated to them. However, they still retain the land rights over their allocated or inherited land.

Policy: It is a National Policy that underutilized land owned by these groups should be leased on seasonal basis. A formal lease agreement should be entered into through Indlunkhulu.

4.5.8 Issue: Establishing a fair and effective mechanism for assessing and paying compensation

Policy (a), above, sets forth the basic definition of adequate compensation. Putting in place a fair and effective mechanism for applying that definition is of critical importance.

Policy: It is a National Policy that the extent of compensation should be determined in accordance with a well-defined process supported by law, with the involvement of valuation experts. The process shall provide meaningful opportunities for affected people to present claims and to contest decisions, and shall ensure that payment of awarded compensation is prompt.

The general process of assessing compensation should be established in legislation, with details further spelled out in specific resettlement plans. In general,

responsibility for implementing the process should be assigned to a specific group, comprising community members, government officials and valuation experts;
criteria should be decided upon and publicised for determining the eligibility of a claim (for example, a "cut off" time might be fixed, after which investment in a particular piece of land shall not be compensable, to make sure that people do not take unfair advantage of the compensation process; similarly, there may be cases where a person has openly used land to which he is not entitled in knowing and blatant violation of applicable law or custom);
a procedure for contesting decisions needs to be put in place.

4.5.9 Issue: Right to appeal resettlement-related decisions

Policy: It is a National Policy that people affected by resettlement-related decisions should have the right to appeal those decisions, and have access to efficient avenues for presenting such appeals.

No amount of planning and consultation will ensure fair and responsible implementation of resettlement, unless affected people themselves have the right to complain and to be heard when plans are violated, rights are not respected or improprieties occur.

4.6 Institutional and Legal Framework

Strong, consistent, efficient, transparent and just institutional and legal frameworks are essential to achieve the objectives of the National Rural Resettlement Policy. In the past, resettlement efforts have rested upon weak institutional and legal foundations. Not only do such foundations now need to be strengthened and improved, they need to be re-tailored to accommodate the strategies and principles enunciated in this document.

4.6.1 Issue: Lack of co-ordination among various institutions involved in resettlement and lack of a central institution charged with the resettlement function

Currently, there are several institutions that are involved in resettlement, principally the Ministry of Agriculture and Co-operatives (MOAC) and the Central Rural Development Board (CRDB). A clear delineation of roles and responsibilities of different institutions is lacking, and co-ordination is poor.

Policy: It is a National Policy that the MOAC shall be the central authority with overall executive responsibility for rural resettlement policy. In addition, a co-ordinating and advisory body with broad representation from other institutions, including traditional structures and civil society, involved in resettlement should be set up. This body, the Rural Planning, Development and Resettlement Board, would be brought together by and advise the MOAC, which would provide the administrative support for it.

For a more detailed description of proposed institutional arrangements, see Chapter 4.

4.6.2 Issue: Lack of consistent and comprehensive legal framework for resettlement

For any policy to be operational, it should be supported by appropriate and comprehensive legislation. It appears that the present legislation for resettlement is fragmented, inconsistent and insufficient. Overall, it must be said that, since the passage of the Swazi Land Settlement Act of 1946, little thought appears to have been given to the most appropriate legal framework for resettlement.

The dual nature of law and administration applying to TDL and SNL has operated to inhibit the development of any consistent and comprehensive legal framework applying to the administration of settlement and resettlement schemes in Swaziland. This, in turn has inhibited efficient implementation of resettlement schemes, enabled persons to ignore or frustrate the operation of schemes and provided little scope for the airing of grievances. The laws applicable to settlement and resettlement have tended to be top-down and even authoritarian in nature, and are out-of-date and ill-suited to support the implementation of this National Rural Resettlement Policy.

Policy: It is a National Policy that comprehensive new legislation shall be enacted as a matter of urgency, to provide for the sustainable management of rural areas, to support the appropriate application of resettlement strategies, to guide the fair and adequate compensation of those affected by resettlement, to define institutional mandates and powers, and to otherwise support the full implementation of this National Rural Resettlement Policy.

5 INSTITUTIONAL AND LEGAL FRAMEWORK

5.1 Institutional Framework

There is an overall need for a central body to be the ultimate, single authority to sanction, help design, co-ordinate and monitor rural resettlement efforts. Such an arrangement would clarify the present divided responsibility between CRDB and MOAC, even though the two bodies are partially fused at lower levels. It would also regulate the roles and interventions of a range of other ministries- Housing & Urban Development, Natural Resources, the Environmental Agency, Deputy Prime Minister’s Office - all of whom need to be involved in what is necessarily a multi-functional activity.

The basic choice is whether such final responsibility should be given to one line Ministry or to some board or authority representing a range of interests. Subsidiary questions relate to whether any such latter body should be advisory or a supraministerial body or should occupy a role straddling traditional and modern structures as the CRDB has done. Indeed, one version of the latter alternative would be for the continuation of CRDB which has in the past contributed enormously in the field of resettlement.

However, as currently constituted and designed, the ability of CRDB to bear the chief responsibility for rural resettlement in modern circumstances is questionable. It is widely perceived that CRDB does not have a clear mandate, that channels of accountability are unclear, and that it lacks the necessary technical land use and other planning expertise. Part of its limited effectiveness derives from its limited field personnel (9 RDOs who cover the whole country), who in any event operate within the programme of work and depend on the resources of the MOAC. It ought to be pointed out that at its establishment it was very essential for the CRDB to report directly to His Majesty the King in order to guarantee and ensure that native interests were safeguarded since the central government was a colonial one serving the interests of the colonial master abroad. With the advent of independence in 1968 the central government is for the Swazis and by the Swazis, and is answerable to His Majesty. Hence, there is no need for the CRDB to continue reporting directly to His Majesty and by - pass the government, which supports its activities financially and otherwise.

It is therefore recommended that the MOAC be declared the central body with overall executive responsibility for resettlement policy. In addition, a co-ordinating and advisory body with representation of other Departments and able to involve the traditional structures associated with the tinkhundla system and any other bodies should be set up. This body would be brought together by and advise the MOAC which would provide the administrative support for such a body.

These proposals envisage that the central role will include overall guidance and supervision of rural land management and resettlement, which in turn will involve both approving locally-generated proposals and laying down a national programme. But in practice much will depend on the balance that is achieved between taking initiatives to launch resettlement, on the one hand, and offering approval, and guidance and monitoring to local proposals. The latter emphasis implies a much less top-down approach, and also may be pragmatic in implicitly recognising that there are limited resources to make possible a national campaign. Even if a central body is concerned more with providing a guiding role, this does not require that it confines its activities to responding to local initiatives; there will be a need to generate guidelines, to provide training and instruction to the stakeholders, chiefs and their councils and local committees. The required instruction will have to cover technical issues of land use planning, land management including making communal structures work, resolution of resource-related disputes, etc.

To discharge these latter tasks will require a degree of reshaping of the Ministry. In particular, it implies a more operational role for Land Use Planning Section and the building up of its capacity. Hence the Rural Development Officers shall form the extension wing of the Land Use Planning Section, and shall be officers with qualifications on land management or related disciplines. Closer contact with the extension service and its front-line field staff will also be important; they too will need some retraining and instruction in new techniques, including methods for facilitating participatory planning. The MOAC will also need to develop new capabilities in those areas: for example, the management of communal grazing resources will require the expertise developed within Veterinary Services and linked to range management; dispute settlement will have to be learnt, both theoretically and at the practical level.

The principle institutional players and their main functions are described in the following six subsections:

5.1.1 The Minister of Agriculture and Co-operatives

The Minister shall be responsible for:-

Formulating policies that will advance the principles of rural resettlement policy.
Ensuring and monitoring the proper implementation of rural resettlement policy.
Assisting local communities to design and implement land-use and rural resettlement plans and providing technical support for the implementation;
Issuing such orders, directives, guidance and circulars as will enable public officers and other persons with official responsibilities exercising any functions, including functions assigned or delegated to them by or under the authority of the Minister, to act at all times in a fair and responsible manner in implementing the rural resettlement policy.
Developing programmes of public education and awareness on the matter provided for in the rural resettlement policy.

The minister will perform most of these functions through the Land Use Planning Section.

5.1.2 The Rural Planning, Development and Resettlement Board

The new central entity shall be created, to be called the Rural Planning, Development and Resettlement Board (or some similar name determined by legislation), which shall carry out a variety of functions to be defined in legislation, including:

Assisting the Minister in formulating and co-ordinating policies on rural planning, development and resettlement;
Advising the Minister in matters relating to rural planning and resettlement programmes and their implementation;
Advising and assist local planning and development committees in carrying out their functions;
Reviewing and making recommendations to the Minister on rural land use or related plans;
Reviewing and making recommendations to the Minister on resettlement plans
Developing and keeping under continuous review guidelines on compensation and mitigation for losses caused by resettlement;
Recommending to the Minister whether and if so what regulations should be made to further the implementation of the Rural Resettlement Policy;
Reviewing drafts of regulations prepared by or to the order of the Minister;
Encouraging, promoting and stimulating, in collaboration with other appropriate bodies and organizations in the public and private sectors, training, education and public awareness programmes on the principles and practices of sustainable rural development;
Providing advice and assistance to farmers' associations and other community organizations concerned with rural development;
Liaising with other public sector bodies and organizations whose terms of reference include matters connected with rural development, land policy, planning or resettlement; and
Liaising with non-governmental organizations and other bodies in the private sector which have interests, in or which carry out programmes and projects connected with, rural development or resettlement.

The Board shall be appointed by the Minister, and shall be composed of the following persons:

A person, not being a person in the public service, who shall be appointed to be the chairman of the Board;
Two persons knowledgeable about rural development from each region of Swaziland, of whom at least one person from each region must be a person occupying and using land in Swazi Nation Land for Agricultural purposes in that region;
One person to represent the Swaziland Environment Authority;
One person to represent the Human Settlements Authority;
One person representing non-governmental organizations, the principal focus of which is rural development;
One person representing private sector organizations or companies involved in projects and developments in the rural economy;
The head of the Land Use planning Section, ex-officio, who shall be the secretary of the Board and a member without a right to vote.

5.1.3 Chiefs

A Chief shall:-

Where a rural planning and development area has been declared or a resettlement plan has been approved over the whole or a part of his area jurisdiction, exercise his functions in connection with the allocation and management of land within the relevant area in accordance with the provisions of this Policy and any approved rural area development plan or resettlement plan;
Generally, within his area of jurisdiction, exercise his functions as a chief under Swazi Law and Custom, in accordance with the Principles of rural planning and development set out in Chapter 2 of this Policy and with the specific Policy statements set forth in Chapter 3, and cooperate with public officers and local committees, exercising his/her functions so as to advance the economic and social development of the people falling under his jurisdiction.

5.1.4 Community-level Committees for Land Use Planning and Management

Community-level committees responsible for all aspects of land use planning and management shall be set up throughout the country, whether or not resettlement is contemplated within particular communities. They shall have a broad mandate which would include, with the assistance of LUPS, the drawing up of plans specifying zoning for various land uses. These plans would be subject to the approval of the MOAC and/or central advisory resettlement body. Central approval would allow for expert advice on agricultural and environmental features of any proposals, but most crucially could ensure that the same kind of rigorous economic evaluation of costs and benefits of resettlement plans is made as is required for other kinds of project.

The powers and responsibilities of these committees would include:

Decisions about whether and who to relocate, either as part of a proposed new resettlement or simply as a result of up-dating and tidying up existing 'maps' and specified practices, with the approval of central authorities and subject to safeguards and procedures established by law. Such relocation would be on the understanding that compensation be paid, almost inevitably with contribution from central revenues, in accordance with the relevant sections of this Rural Resettlement Policy (see Chapter 3).
Ensuring compliance with local land use maps. The imposition of sanctions should not be assigned to the proposed committees but should remain with the chiefs and inner councils. However, the inadequacy and lack of consistency, fairness and transparency in present practices is widely recognised. Hence it is recommended that various penalties need to be spelled out in law, that legislation also should designate a clear and transparent mechanism for such penalties to be appealed, and that the committees should play a role in monitoring the application of such penalties.
It would be the traditional authorities' decision to grant homestead rights (with or without fields) to particular people but in accordance with the broad specification of zones by the committee. There would also have to be legal machinery, at a level above the community, for ensuring consistency between chiefly allocations and land use plans. The community committees would also have to be encouraged to be pro-active about future provision about land that could be allocated to up-coming generations of farmers, given that most young households are now obtaining access to fields from family not chiefly allocation.

The involvement of all stakeholders in local-level decision making about land use and resettlement is critically important. Consequently, the bulk of the membership of the community committees should be elected. It recommended that the number of representatives should vary depending on the size of the area but that there should be a minimum of five, and that a three year term would be suitable. It is also proposed that in light of the onerous nature of their responsibilities, some suitable recompense for their time and expenses should be provided.

It is recognized that linkages with the traditional authorities is important, but it is also felt that the position of chief's and inner council members (bandlancane) as independent adjudicators of disputes and the authority in enforcing land use rules, would be impaired if they were also members of the communities. However, it is recommended that there be a representative of the chief as an ex-officio member.

Similar arguments may be put forward in recommending that government officials should not be formal, ex-officio members - partly as there is no single officer identified solely with one community. However, the need for liaison and for technical advice to the committees is stressed, and it is envisaged that officers might attend meetings, that they would certainly help prepare plans and proposals and cost them, and that there should be a significant infusion of technical guidelines from MOAC and other institutions into the committees.

It is also proposed that some mechanism, in addition to the liaison activities of ministerial staff, should be put in place to provide an automatic structured link with the Tinkhundla and with other upper levels of government.

5.1.5 Communal Land Management Committees

Effective institutional arrangements for the on-going management of communal land is essential in all communities, whether or not they are undergoing or contemplating resettlement per se. In particular, instituting a system for managing communal land reserved for grazing and for access to other resources has been emphasized as a priority to ensure sustainability - it is on such land that erosion is particularly rampant.

The kind of institutional arrangements that are required depends first on the tasks that are required in SNL grazing land management. From earlier discussion, it is clear that the job must be seen as not simply reducing and/or maintaining livestock numbers at a level that meets 'carrying capacity'. At the same time, the overall requirements for more intensive use of land points to the need for reducing the area devoted solely to grazing in some areas, where there is greater arable potential. To achieve that and also the greater productivity of herding implies an aim of improving pasture, not just sustaining it. The management required thus does mean some attention to numbers, but coupled with a more productive and regulated use of the pasture and efforts such as control of bush, planting of fodder crops or alternative species to local grasses, as well as tackling erosion at the points of concentration which are where it mainly occurs.

One important issue in defining the structure of these bodies is the definition of 'membership'; closed membership is desirable but if restricted to listed residents who own cattle, this runs the risk of ignoring the interests of those who aspire to own livestock in the future, and also of those who rely on the communal area for fuel-wood and other raw materials. Another related issue is the manner of choice by members of a management committee: the elective principle seems to be desirable, but, may not be enough to avoid bias toward the interests of the minority of larger cattle owners. Some advantage in this regard and in other efforts to co-ordination may come from linkage to the rural land development authorities.

It should be stressed that some minimal task of grazing land management has to be performed in all SNL communities, whether already resettled or not. Moreover, no resettlement, even those of the past can succeed in accomplishing one of its potential benefits of ensuring sustainability unless this difficult matter of evolving some effective institution of communal management of grazing is achieved.

Building effective local institutions for the management of other communal resources, such as forests. Where relevant, is also essential, and mechanisms for creating such institutions shall be provided for in law.

5.1.6 Land Dispute Resolution Institutions

Widespread land disputes are inhibiting factors for successful rural land management and resettlement programmes. It is important that these disputes be addressed. At community level, structures for resolving community disputes are already in place and have to be used effectively. It is important that civic education be carried out for members of this important committee. The structure below is proposed for addressing the land disputes at various levels.

His Majesty
Regional Committees
Bandlancane

An independent Dispute Resolution Committee at regional level is being suggested. The committee should be chaired by the Regional Administrator and be composed of seven other members, as follows: a person with a legal background, Ndabazabantu, 2 Tindvuna Tetinkhundla from the same region, 2 Chiefs also from the same region and the Senior Extension Officer as the secretary of the board. Members of the committee should be entitled to sitting allowances.

The mandate of the Dispute Resolution Committee shall be to:

Provide a forum for the resolution of disputes related to land management and rural resettlement which are above the level of Chiefs
Be an appeal committee on matters of compensation during resettlement
Be an appeal committee for cases related to land management and resettlement that have been tried by chiefdom structures
Solicit technical advise from competent institutions on technical issues that have to be decided upon

The decision of the committee shall be final and binding on all, subject to a right to appeal to His Majesty.

5.2 Legal Framework

As noted throughout this document, current legislation pertaining to resettlement is inadequate, inconsistent and fragmented. Many of the new strategies and institutional arrangements called for in this Policy are not currently supported by the legal framework. It is essential that comprehensive new legislation be enacted as a matter of urgency, to provide for the sustainable management of rural areas, to support the appropriate application of resettlement strategies, to guide the fair and adequate compensation of those affected by resettlement, to define institutional mandates and powers, and to otherwise support the full implementation of this National Rural Resettlement Policy.

The preferred option is to develop a new law rather than introduce a series of amendments to the existing inadequate bits and pieces of laws. Some of the existing laws regarding resettlement, which would be inconsistent with the proposed law, will have to be either repealed or amended.

The draft Rural Planning, Development and Resettlement Act, prepared within the framework of an FAO technical co-operation project provides a virtually complete foundation for accomplishing the objective of this Policy. It covers the whole field of rural land use rather than just focusing on resettlement alone. In view of the above, it is recommended that, after this Rural Resettlement Policy has received cabinet approval, the draft bill forms the basis for preparing a formal legislative submission, subject to such minor modifications as may be needed to synchronise the proposed law fully with this Policy.

6 GLOSSARY

Agro-Ecological Zoning

A framework to organise and evaluate land data, including selection of alternative land uses, determination of climatic and soil requirements of these uses, the inventory of climate and soils combined in agro-ecological units, and classification into land suitability classes for the selected land uses.

Compensation

Compensation is the replacement of losses sustained by individuals, homesteads, households within homesteads communities, groups and chiefdoms as a result of the resettlement. Compensation can be either in kind or in cash. Furthermore, in line with international "best practice", compensation is deemed to include efforts not to restore but to enhance the living standards of project affected people.

Degradation

A measurable and long-lasting, often irreversible, decline in the productivity of the land.

Desertification

A process identified by:

Declining biological production,
Deterioration in the physical environment and
Increased hazards for human

Development

The modification of the biosphere and the application of human, financial and living and non-living resources to satisfy human needs and improve the quality of human life. Development always proceeds from a state of relative globality and lack of differentiated, structured and integrated situation.

Environment

The atmosphere, water in all its forms, land, soil and subsoil flora, fauna, energy sources, minerals, topographical formations with energy potential, geothermal resources, living resources, landscape resources and other elements and factors such as residues, garbage, waste and refuse, noise, living conditions inhuman and man-made products.

Farm

An area of land used for, or in connection with husbandry, forestry or agriculture, but does not include:

Crown or Government land, or
Land vested in the Ngwenyama in Trust for the Swazi Nation, or
Stands, lots or even in urban areas.

Farm Dwellers

A person who resides on a farm other than:

The owner thereof, or
A usufructuary or fiduciary; or
A lessee under a written agreement of lease; or
The holder of a registered servitude which gives the right of occupation; or
The manager or agent of a person mentioned in paragraph a, b, c, d, or c;
A member of a family or guest of person mentioned in paragraph a, h, c, d, or e; or
A person who is in the whole time employment of an owner if it is a condition of his employment that the owner shall provide him or his family with residential accommodation.

Freehold

A limited set of property rights held perpetuity over a defined area of land.

Land

A delineable area of the earth’s terrestrial surface, encompassing all attributes of the biosphere immediately above or below this surface, including those of:

the near surface climate
the soil and terrain forms
the surface hydrology (including shallow lakes, rivers, marshes and swamps)
the near surface sedimentary layers and associated groundwater reserve
the plant and animal populations
the human settlement pattern and physical result of past and present human activity (terracing, water storage or drainage structures, roads, buildings, etc)

Land tenure

The mode by which land is held or owned, or the set of relationships among people concerning land or its product.

Settlement

The relationship between a group of people and land which they use, and which usually involves relationships between people.

Squatter

A person who resides on a farm other than:

The owner thereof, or
The farm dweller thereof, or
A usufructuary or fiduciary; or
A lessee under a written agreement of lease; or
The holder of a registered servitude which gives the right of occupation; or
The manager or agent of a person mentioned in paragraph a, b, c, d, or c;
A member of a family or guest of person mentioned in paragraph a, h, c, d, or e; or
A person who is in the whole time employment of an owner if it is a condition of his employment that the owner shall provide him or his family with residential accommodation.

Swazi Nation Land

Land held by the Ngwenyama in trust for the Swazi nation. Either administered under customary tenure or leased.

Nation

A community of persons not constituting a state but bound by common descent, language, history, etc.

Peri-urban

Areas outside formal urban boundaries and urban jurisdictions which are in a process of urbanisation and which therefore progressively assume many of the characteristics of urban areas.

Policy

A guiding principle or course of action toward an objective or objectives.

Property Rights

A recognised interest in land or property vested in an individual or group and can apply separately to land or development on it. Rights may cover access, use, development and transfer.

Resettlement

Any change in settlement patterns. Resettlement may include:

Relocation: Physical shifting, which could be of dwellings, field or common grazing and other land, of all simultaneously;

Reallocation: Social redefinition of the relationships which determine which person or group has access to or rights over land.

Resettlement takes several different forms, which are defined for purposes of this Policy in Chapter 1.

Residential Land

Land which is being used for housing or which can be developed for housing without requiring re-subdivision of any kind for single unit residential development. In all other cases, the land is to be considered commercial land for the purpose of this policy until such land is developed. Residential land is therefore land where the prime current or intended purpose of its use is the provision of shelter, not engagement in commerce.

Rural Land

All land not situated in a township, village or settlement.

Village

A compact settlement, which in most cases is well planned. Its main characteristics are: Compact settlement; and Homesteads confined on a defined area thus covering a small land surface space.

This document has been produced by the Resettlement Task Force, whose members are under-listed, in accordance with Legal Notice No. 108 of 1999.

Name Position Signature Date

Prince Gcokoma Chairman

Mr. Chicks Nkosi Member

Mr. Patrick Dlamini Member

Mr. Ndzaba A. Dlamini Member

Mr. Mantaba J. Mkhaliphi Member

Dr. Musa A. Dube Member

Dr. Nomcebo O. Simelane Member

Dr. Maggie Makhubu Member

This page was last updated on 18 February 2004