Since the 1990s, the strengthening of rural residents’ land rights under the customary land tenure system has become an important policy issue in many African countries (Bruce and Knox 2009). In many countries, it took the form of land law reform, and most countries chose one of the following two policy options. One was to establish a new state entity, known as land boards, to administer land at a local level. This measure was introduced in countries such as Botswana and Namibia. The other was to strengthen the role of traditional authorities in local land administration, which was adopted in countries such as Malawi and South Africa. However, this dichotomy is also misleading with respect to southern Africa, as traditional leaders often maintained influence on local land boards in Namibia, and the consolidation of the land allocation power of traditional leaders in democratic South Africa was a highly contested process (Sato 2018a).
Zimbabwe obtained independence from Britain and its settler-rule in 1980 through the Lancaster House Agreement, which set the foundational principles of its land redistribution programme for the first ten years of its independence. With regard to land tenure reform, the newly independent government enacted the Communal Land Act (1982), which repealed the Tribal Trust Land Act (1979) and renamed tribal trust land as communal land (Cheater 1990, 201). The Act also transferred the power to allocate land in communal areas from customary chiefs to the elected rural district councils that were established by the District Councils Act (1980). This Act also introduced the village development committees (VIDCOs) and the ward development committees (WADCOs) as representative bodies for the residents of communal areas. These elected local representative institutions were expected to implement the rural modernisation programmes of the central government (Alexander 2018). Some customary chiefs voiced opposition to these new policy measures (O’Flaherty 1998, 539–540), but the ruling Zimbabwe African National Union–Patriotic Front (ZANU–PF) government crushed these oppositional voices. Nonetheless, many academic studies have reported that traditional leaders, especially village heads (sabhukus),Footnote 1 continued to allocate land and mediate local land disputes in many communal areas (Cousins et al. 1992, 16; O’Flaherty 1998, 547–550; Andersson 1999, 555–556).
The government significantly altered its course in the late 1990s, after the Commission of Inquiry into Land Tenure recommended the dissolution of the VIDCOs and WADCOs due to their ineffectiveness in contributing to the development of communal areas. The Commission also recommended enhancing the administrative powers of the traditional authorities in communal areas instead of bestowing power upon locally elected entities. In line with these recommendations, the Traditional Leaders Act (1999) was enacted, which officially restored the power to allocate land in communal areas to customary chiefs. However, their decisions had to be approved by the rural district councils. The Act also abolished the elected VIDCOs and the chiefs appointed sabhukus to lead ‘village assemblies’ in their place (Chimhowu and Woodhouse 2010, 19–20). The 2002 amendment to the Communal Land Act (1982) ascribed authority to the rural district council, but it also stated that the council should consult and cooperate with the chief that is appointed to preside over the community as per the Traditional Leaders Act (Murisa 2013, 255–257).
Since 2000, Zimbabwe’s land sector has undergone a complete overhaul through the implementation of a new land reform policy—the Fast Track Land Reform Programme (FTLRP). The origin of the FTLRP was in the land occupation movements led by war veterans in 1999, who had fought in the war to achieve liberation from white Rhodesia. The period of land occupation and confusion that preceded the FTLRP is known as jambanja. Given the unprecedented level of demand for land redistribution and the emergence of strong political opposition that originated from trade union movements among urban workers in the late 1990s, which resulted in the formation of the Movement for Democratic Change (MDC), the ZANU–PF government decided to assume control of the land occupation movements and incorporated them into its land reform policy (Gideon 2019, 14–16).
The principal significance of the FTLRP undoubtedly lies in the fact that it has successfully dismantled the racially skewed land ownership structure that was moulded by colonial rule. At the time of independence in 1980, more than 15 million ha of land were devoted to large-scale commercial farming at the hands of approximately 6000 farmers, who were predominantly white. By 1999, the white commercial farming area was reduced to 12 million ha, which was approximately 35% of the total agricultural land (Scoones et al. 2010, 2–3). The government appropriated more than nine million ha of white-owned farmland for the FTLRP (Chimhowu and Woodhouse 2010, 14; Moyo 2013, 42). Simultaneously, it is also important to stress that the FTLRP created a new dual structure, which consists of A1 resettlement farms and A2 commercial farms. The former are small-scale, permit-based lands, whereas the latter are medium-scale farms with leasehold tenure (Scoones et al. 2010, 3–4; Chimhowu and Woodhouse 2008, 286–287, 2010, 14; Moyo 2013, 45).
While the FTLRP was essentially a land redistribution policy, it also brought the land tenure policy to the fore with regard to who would oversee the land allocation process on the A1 resettlement farms. Initially, the war veterans controlled the land occupation movements in the sense that they selected farms to occupy and mobilised people to occupy the farms. However, traditional leaders were also involved in the land occupation process, especially with respect to identifying ancestral lands and conducting cleansing ceremonies after the occupation. Moreover, once the ZANU–PF government took over the process and formalised it as the FTLRP, traditional leaders such as chiefs and village heads (sabhukus) were given bigger roles, which included the selection of the beneficiaries and the allocation of land on the A1 resettlement farms. In 2003, the government announced that both the Rural District Council Act and Traditional Leaders Act were to be applied in these areas (Murisa 2013, 261–269, 2014). Through this process, some chiefs were able to expand the territories under their jurisdiction by putting their people on the farms meant for A1 resettlements that were adjacent to communal areas under their jurisdiction (Mkodzongi 2016).
Moreover, the FTLRP unleashed the land restitution demands/claims made by several chiefs based on historical land dispossession that had taken place during the colonisation process (Fontein 2009; Dande and Mujere 2019). The demands for the restitution of land dispossessed during colonisation by traditional leaders existed even prior to Zimbabwe’s independence. However, the ZANU–PF government never met these demands in the 1980s and the 1990s, when it resettled people on farms that it had bought with financial assistance from Britain (Chamunogwa 2019, 74). Unlike South Africa, Zimbabwe’s land redistribution programme did not have an element of land restitution. This implicit rule in the Zimbabwean land redistribution policy was broken during the FTLRP, as some chiefs led people to occupy specific farms that had historically belonged to their tribes but were subsequently lost to white settlers during the colonial period, and their occupations were formalised through the A1 resettlement process (Chimhowu and Woodhouse 2008, 296–297; Fontein 2009). It has also been reported that disputes over traditional boundaries have emerged in certain areas due to the FTLRP, as different chiefs decided to resettle their people on the same A1 resettlement farm (Mkodzongi 2016; Dande and Mujere 2019).
Thus, several studies emphasise the significant roles played by traditional leaders during the jambanja period and the subsequent FTLRP, highlighting the personal and tribal intentions governing their acts (Chimhowu and Woodhouse 2008, 296–297; Fontein 2009; Mkodzongi 2016; Dande and Mujere 2019; Chamunogwa 2019). Nevertheless, the extent to which traditional leaders had complete autonomy in their actions is disputed. Alexander (2018, 151) argues that during the FTLRP, traditional leaders were ‘influential only insofar as they subordinated themselves to the ZANU–PF’s partisan project’ on resettlement farms. Despite the FTLRP’s unprecedented achievements with respect to responding to the popular demand for land and dismantling the colonial land ownership structure, Gideon (2019, 21) is also adamant that it was the ZANU–PF’s ‘exclusive partisan programme’ and not the ‘non-partisan national initiative’ that it claimed to be. He states that the ‘ZANU–PF structures mutated with land committees and local community leadership at every level’ in the implementation of the FTLRP.
While the FTLRP enabled black people to resettle in formerly white farms, some communal areas experienced an influx of people from urban areas and white farms throughout the 1990s and the early 2000s. This increased the scarcity of land in communal areas and prompted informal land transactions that were prohibited by the law (Chimhowu and Woodhouse 2008, 2010; Goodwin 2013). ‘Private’ transactions of land in communal areas were already reported in the 1980s (Cousins et al. 1992, 17–18), and these practices seem to have become more common since then. Chimhowu and Woodhouse (2008, 2010) discussed the development of two forms of commodification of land in the Svosve communal lands in Marondera district in Mashonaland East province in the mid-2000s. One was the sale of grazing land by sabhukus to newcomers who sought residential and agricultural lands. The other was the leasing out of agricultural lands by absentee residents who lived in the cities, resettlement farms, or overseas as diaspora, and their relatives. However, in both the 1980s and the 2000s, these land transactions were mediated by customary authorities and therefore did not necessarily undermine the customary land tenure system. In the context of the lack of security of these informal land transactions, Goodwin (2013) illustrated how land purchasers tried to strengthen their land rights by creating and reinforcing their connection with the land through traditional ceremonies and practices.
Namibia obtained independence from South Africa in 1990. The scope of Namibia’s land reform policy was discussed at the National Land Conference that was held in Windhoek in 1991, in which 700 people participated (Adam and Knight 2012, 36). Although Namibia also experienced a much higher degree of land dispossession in comparison to other African countries, the extent of dispossession in Namibia was still the least among the three former settler colonies in southern Africa.
Namibia’s colonial land dispossession had unique geographical and ethnic dimensions. The colonial land dispossession in Namibia took place through the German conquest in the late nineteenth century in the middle and southern parts of the country, where the Herero and Nama ethnic groups lived. The German colonial authority named the conquered areas the ‘police zone’, and this area was maintained exclusively for white settlements even after the First World War, when Namibia (known as South West Africa at that time) became a British protectorate administered by South Africa. The Herero and Nama people paid a huge price in both their blood and lands during the German conquest and subsequently relocated to native reserves that were established outside the ‘police zone’. In contrast, the northern part of the country, where the majority of rural inhabitants lived, was never invaded by colonial settlers. It was set aside as native reserves (later Bantustans) for different ethnic groups, and traditional authorities that were appointed by the colonial government maintained a degree of autonomy in administering them (Werner 1993; Lankhorst 2009, 198–199; Amoo and Harring 2012, 223–226). Approximately 40% of the people lived in one of these reserves, which was known as the Owamboland. Its residents (the Owambo people) became the political foundation of Namibia’s liberation movement—the South West Africa People’s Organisation (SWAPO)—which later turned into the ruling party.
Reflecting these historical specificities, discussions at the National Land Conference in Namibia were dominated by issues related to land tenure reform in communal areas (former Bantustans), rather than the question of how to redistribute white-owned farms to black people. Half of the recommendations from the conference concerned land issues in communal areas, such as the need to guarantee land to local people, the abolition of land allocation fees, the recognition of land rights for women, the establishment of effective land administration, the prohibition of the ‘illegal’ fencing of grazing lands, and the encouragement for moving livestock belonging to wealthy farmers to commercial farms. These recommendations were fed into the policy document of the National Land Policy White Paper in 1997 (Adam and Knight 2012, 36).
It took an additional five years before the legislation on land tenure reform in the communal areas was formulated. The Communal Land Reform Act (2002) stipulated that, in accordance with the Constitution, the ownership of rural land in communal areas is vested in the state. The Act also created two different forms of land tenure for the residents of communal areas. One was the customary land right, whereas the other was the 99-year leasehold right. The Act prescribed the establishment of communal land boards as the entity that would administer these land rights. Every individual or family seeking the recognition of their customary land rights must submit an application to a local communal land board that will handle the registration of their customary land rights. Simultaneously, the Act recognised the limited role of traditional authorities in communal land administration. Thus, chiefs have maintained the power to allocate communal land to individuals/families, but their decisions have to be approved by the local communal land boards that will handle the registration process. In this sense, the communal land boards were tasked with supervising the land allocation conducted by chiefs. The Act further recognised that the traditional authorities have the power to regulate grazing access to commonage within their local communities (Lankhorst 2009, 199–201).
Thus, one can say that Namibia introduced a hybrid system for the administration of land in communal areas. In this system, the traditional authorities were expected to work in conjunction with the newly created state entity—the communal land boards. However, who would constitute the traditional authority in this hybrid system became one of the contentions surrounding land administration in communal areas. Prior to the Communal Land Reform Act (2002), the Namibian government enacted the Traditional Authorities Act (2000), which recognised traditional authorities and the traditional communities that they represented. When the traditional leadership of six San communities applied for recognition as a traditional authority under the Traditional Authorities Act (2000), the Namibian government at first turned down all the applications. Later, it recognised the traditional leadership of two San communities that lived in Bushmanland (one of the former Bantustans in the northeast of the country). They are the !Kung and Ju|’hoansi communities, who comprise only 15% of the total San population in Namibia.Footnote 2 Since they do not have any land of their own, most San communities whose applications for the recognition of their traditional leadership were rejected by the government continue to live on the land under the authority of the Owambo and Kavango people or on white farms as farmworkers. Since their traditional leadership was not recognised by the government, they are not consulted on matters related to the land they occupy (Lankhorst 2009, 207).
The other highly contentious issue surrounding land administration in Namibia’s communal areas is the encroachment of commonage through illegal fencing by wealthy or politically well-connected individuals. This problem of privatisation of commonage through illegal fencing has been exacerbated, particularly since independence, as an increasing number of wealthy black farmers who accumulated wealth in urban economies began to invest in commercial farming in communal areas (Lankhorst 2009, 209–210). According to Gargallo (2020, 134–135), more than 1000 fences were set up in communal areas during the first ten years of the twenty-first century. These amounted to three million ha of fenced ranches. In addition, while 46.4% of Kavangoland’s total land area was used as a communal grazing area, 30% of it was occupied by commercial ranches. This process was facilitated by the traditional authorities’ inability to regulate grazing access to the commonage under their jurisdiction and by the co-optation of traditional authorities by wealthy or politically well-connected farmers. Fencing a part of commonage, especially the most valuable part of the water holes, has reduced people’s access to grazing land and water sources. Consequently, it prompted the movement of these excluded people to the commonage of neighbouring communities, which resulted in land conflicts between neighbouring communities (Lankhorst 2009, 209–210).
3.3 South Africa
South Africa was the last country among the three discussed here to obtain independence from racial domination. Like Namibia, it held the National Land Conference in which representatives from various corners of the society came to discuss the future direction of land reform policy. The conference was held in 1993, just prior to the country’s first democratic elections (National Land Committee 1994). In addition, there were other stakeholder conferences on the future of land reform, such as the one funded by the World Bank, that had some influence on the final land reform policy proposed in the White Paper on Land Policy (hereinafter: the White Paper) published in 1997 (Williams 1996). South Africa’s land reform policy was unique, as it contained not only a land redistribution programme that aimed to distribute white-owned farms to black people to redress the racial inequality of land ownership, but also the land restitution programme that aimed to return land to those who had been dispossessed of it by racially discriminatory laws and practices after the Natives Land Act (1913). The White Paper also proposed a land tenure reform programme to consolidate the land rights of residents of the former homelands (also known as Bantustans) and the tenants and dwellers on white-owned farms.
The White Paper identified two problems with the former homelands’ land tenure system. One was that residents’ rights to the land were not officially recognised, which placed them in a vulnerable state. The other was that the land administration system in the former homelands was in a state of disarray and its tendency to discriminate against women was incompatible with the democratic principles enshrined in the Constitution (DLA 1997, 30–34). As an interim measure, the Interim Protection of Informal Land Rights Act (1996) was enacted to protect the vested interests (land rights) of people who did not have explicit legal rights to the land that they occupied, such as residents of the former homelands. The Act also stipulated that people with informal rights to the land must be treated as stakeholders when such land is subject to development projects and business transactions (DLA 1997, 62). Following the White Paper, the Land Rights Bill was discussed within the Department of Land Affairs, but it was never introduced to Parliament. While South Africa embarked on the land redistribution and land restitution components of its land reform policy soon after its democratisation, it took ten years for the legislation to enforce land tenure reform. Moreover, the Communal Land Rights Act (2004, hereinafter: CLaRA) was never fully implemented after the Constitutional Court declared it unconstitutional in 2010.
Although the CLaRA was struck down due to procedural reasons, the legal challenge posed to the CLaRA revealed the fundamental contentions surrounding land tenure reform in South Africa. The CLaRA aimed to recognise the various forms of existing land rights—formal and informal, registered or unregistered—of the people residing in communal lands, that is, the former homelands of South Africa. The CLaRA had three principal provisions. First, it proposed two forms of land rights. One was the community/group land rights that were bestowed upon the community and registered under the name of the community. The other was the right to a piece of land within the communal land that was given to individual members of the community and registered under the name of the individual residents. Both land rights could be converted into freehold ownership. Second, it proposed that the community/group land rights were to be administered by a land management committee that had to be established within the community. It also stated that if there is a traditional council within the community, such councils may exercise the authority and obligations of the land management committee. Third, it stipulated the establishment of the Land Rights Board, which was the government agency that would oversee the administration of land by the land management committees (Sato 2018a).
The traditional council is a council established within local municipalities by the Traditional Leadership and Governance Framework Act (2003, hereinafter: TLGFA), which gave traditional leaders a wide range of roles that covered agriculture, health, the administration of justice, safety and security, environment, tourism, and so forth. Its predecessor was the tribal authority that was established by the Bantu Authorities Act (1951) of the apartheid era (Cousins 2008, 13). The TLGFA aimed to reform the traditional leaders’ administration system by introducing the principles of gender equality and democracy (Williams 2009).Footnote 3 However, not everyone agreed on making the traditional council a land administration committee. Thus, it was the second provision of the CLaRA that led to the legal challenge by those who objected to the traditional council’s appropriation of the responsibility of the land administration committee. With the support of land NGOs and activists, four rural communities submitted a legal challenge to the CLaRA in 2006—presenting two oppositional arguments. First, they argued that the CLaRA would weaken people’s existing land rights, because whenever a traditional council existed, such councils would become land management committees, which was problematic. Moreover, the CLaRA did not recognise the relative autonomy of communities within the boundaries of traditional councils. Second, they argued that there was a procedural error in the legislation process (Cousins 2008; Murray and Stacey 2008).
Although the CLaRA was found to be unconstitutional due to procedural reasons, the question of how to define the boundaries of the collective/communal land ownership that was raised by this legal case is arguably fundamentally important for reforming the customary land tenure system—where the right to land has been given based on one’s membership in the community. If the traditional council were to become the land administration committee, the owner of the communal land would be synonymous with ‘tribe’. The four rural communities that challenged the CLaRA claimed that smaller communities within the ‘tribe’ had relative autonomy (Claassens and Gilfillan 2008; North Gauteng High Court 2009). There are no population statistics for each tribe in South Africa, but Claassens (2008, 265) estimated that each tribe/community would consist of approximately 10,000 to 20,000 people. My rough estimate presented a figure of 18,000 persons per chief,Footnote 4 which is almost identical to Claassens’s estimate. The size of each tribe differs, but the practicality of establishing a committee that represents more than 10,000 people to administer collectively owned land should be examined regardless.
The legal challenge to the CLaRA also raised the question of whether traditional leaders should have the authority to administer land in the first place. Unlike other African countries, South Africa’s former homelands are not the main targets of agricultural foreign direct investment (FDI) by foreign companies. Therefore, the so-called land grabs have not been a major issue yet. However, in areas where mining occurs in the North West Province, it has been reported that traditional leaders have allowed mining companies to exploit mineral resources without consulting the locals and have monopolised the royalties obtained from the companies (Mnwana 2014). The Bafokeng people in the North West Province are the wealthiest tribe in South Africa due to their income from mines. However, the benefits accrued from such mining activity are not widely distributed among the locals. There is also a conflict among residents regarding the beneficiaries of such mining activity. Should the Bafokeng be the sole beneficiaries? Or should the non-Mfokeng, who live on the Bafokeng land, be included as well? (Comaroff and Comaroff 2009).