An issue that needs to be raised is the impact of HIV/AIDS on land tenure and livelihoods in peri-urban areas in Lesotho, particularly in the environs of Maseru. There is not time to examine this issue in the workshop, but I believe that it needs to be raised and noted. It is in the urban land context, that the consequences of HIV/AID are more likely to include distress sales of property to finance medical care, land grabbing with the collapse of the social order and the possible arrival of tens of thousands of orphans in urban areas. If even one-quarter of the caregivers die in the short to medium term, then approximately 200,000 children will be orphaned. A proportion of orphans will have to fend for themselves. Many could be drawn to the urban area, with severe social and economic consequences and increasing demands on the social welfare budget of Maseru City Council.
Box 1 Tensions between the modern state and Traditional Authorities
Article 107 of the 1993 constitution denotes that all land in Lesotho is vested in the Basotho Nation.
Article 108 (1) states:
The power to allocate land that is vested in the Basotho Nation to make grants of interests or rights in or over land to revoke or derogate from any allocation or grant that has been made or otherwise to terminate or restrict any interest or right that has been granted is vested in the King in trust for the Basotho Nation.
However, article 108 (2) provides that the power that is vested in the King by subsection (1) of this section shall be exercised in accordance with this constitution and any other law.
Article 108 (2) above appears arbitrary and ambiguous. Lands in Lesotho have not been formally nationalized. Neither is there any express law beyond the constitution that has vested the land in the Government of the day. This is the bone of contention between the modern state and the traditional authorities.
Though generally progressive in laying the foundations for an active land market, the statutory interventions introduced since independence also sowed the seeds of conflict in land resources management. Whereas customary law gave the Traditional Authorities absolute power, the modern state has in theory relegated them to the background with little or no power over land. In practice, however, strong and influential Traditional Authorities do what they like with little accountability to the modern state.
Source: Kasanga, K. (1999) ‘Land Policy and Land Management in Lesotho, Part 1: Land Policy’, August 1999, on behalf of GTZ for Agricultural Policy and Capacity Building Programme in Lesotho. (pp 12 –13)
|
Box 2 The Land Act 1979
The Land Act, 1979 is the basic law governing non-customary land tenure (although it provides that where customary law is inconsistent with the Act, the Act shall prevail). It reiterates the constitutional position that land in Lesotho is absolutely and irrevocably vested in the Basotho Nation and no person, other than the Head of State may hold any title to land except as provided by customary law or under the Act. No person other than a citizen of Lesotho who is a Mosotho or a company the majority shareholding of which is held by citizens of Lesotho who are Basotho or a partnership of which the majority of partners are citizens of Lesotho who are Basotho or bodies registered under the Societies Act, 1966 may hold a title, i.e., a lease, to land in Lesotho.
In rural areas, the Act provides for a ‘grant of title’ to be made to a legal person or an individual. This entitles the allottee to use and occupy the land but not to transfer it. A legal person may hold the allocation for an indefinite period but an individual may only obtain a life interest. The Act provides that the life interest will, on the death of the allottee, pass first to the widow and then to the person designated by the deceased allottee, then to the heir nominated by surviving members of the family. An allottee who is using the land for agricultural or residential purposes may on application to the Commissioner of Lands convert his holding of land to a lease. An allocating authority - presently a VDC - may revoke an allocation. Revocation on the grounds of the need to set the land aside for public purposes in the public interest is exercised by the Minister. Compensation is not payable for revocation by an allocating authority.
The grant of a title to land in urban areas is in the form of a lease. Plots in urban areas are advertised and members of the public lodge applications with the ULCs which determine the applications. ULCs consist of Principal Chiefs as chairman, the Commissioner or his representative, the District Administrator or Town Clerk and three other persons appointed by the Minister. In certain circumstances applicants may be invited to tender for plots. Persons claiming a title to land, which has been advertised as available for leasing, have one month to lodge a claim to the land with the Land Tribunal. Such persons are likely to be persons claiming rights to the land under customary law.
Lessees are entitled to exclusive possession and may, subject to the consent of the Minister, undertake normal commercial transactions. A general consent applicable to all transactions may be published by the Commissioner in the Gazette. A set of statutory conditions for leases other than agricultural leases are set out in the First Schedule to the Act. Lessees, other than citizens of Lesotho who are Basotho, occupying leased land for residential purposes pay such ground rent as the Minister may prescribe. The Minister may also prescribe development charges to be paid by lessees.
The Minister may, where it appears to him to be in the public interest or in the interests of the development of agriculture, declare an area of agricultural land to be a selected agricultural area. Persons having existing titles to the land are deemed to have received three months notice of termination of their interest from the date of the publication of the selected area notice in the Gazette. All existing titles to land in such areas are thereupon extinguished but substitute titles in the form of a lease may be granted or where that is not possible compensation is payable for the deprivation of the existing title. Land in a selected area may be leased to a private developer for development.
The Minister may, after consultation with the Principal Chief having jurisdiction within the area and obtaining the King’s consent, declare (by notice in the Gazette) that land is set-aside for a public purpose. Public purposes as defined in the Act include use of land by the government, a local authority or a statutory corporation for communications, infrastructure, utilities, provision of social services such as low income housing, water and land conservation, provision of public offices and other services, and furthering sport, culture and tourism. Persons claiming an interest in the land may claim compensation. In assessing compensation regard is had only to the value of the property as certified by the Government.
|
|
Related documents