Formal land markets in Lesotho suffer from distortions caused by poor land information systems, cumbersome land registration processes and unregulated private land development, leading to unplanned or ribbon/corridor development of land in the urban periphery. Lack of uncommitted land within the inner city areas has also tended to push both the poor and relatively wealthy developers further out into informal peri-urban areas, invariably leading to increased commuting distances from peripherally located settlements. Attempts by the government to acquire customary landholdings through eminent domain have hastened informal and clandestine subdivision and sale of such land by customary holders. This has resulted in extensive unplanned and un-serviced mixed-income residential areas.
Most rural-urban migrants and newly formed households settle in peri-urban neighbourhoods, where, until 1980, the control of land was by local chiefs using customary land tenure rules. In peri-urban areas, housing land can easily be informally or extra-legally bought from sub-divided fields (masimo), and due to scarcity of land supplied through formally planned plots, between 70% and 80% of urban development in Lesotho could now be occurring this way.
However, perceived scarcity of cultivable land (estimated at a decreasing 9% of Lesotho's land area) and the location of towns on prime agricultural land have over time compelled government authorities and their donor partners to 'do something' about informal peri-urban growth and ribbon development along major roads. Coupled with the need to protect arable land there have often been concerns over issues such as the absence of formal land markets and tenure security, the disorderly and inarticulate residential layouts resulting from land sub-divisions sanctioned by the customary chiefs, and slum-like dwellings on the outskirts of urban centres characterising peri-urban development. Policy responses by government have largely taken the form of legislation, perhaps in the hope that an appropriate and effectively implemented legislative framework was all that was required to solve urban problems and restore order to urban development.
The basic principle of land tenure in Lesotho is that land belongs to the Basotho nation and is held in trust by its King. Under customary law, this trusteeship carries with it the responsibility to make and revoke land allocations, which is is delegated to principal and ward chiefs and from them to junior chiefs and village headmen.
Recipients of chiefly allocations hold 'usufruct' rights entitling him or her to use the land according to terms and conditions set out during the allocation. When this type of title lapsed, as through death or removal, rights in land reverted to the chief for reallocation to other members of the village; however, the actual practice has been for family land to pass from father to son(s) as if inherited, without going through the process of reallocation by the chief.
There is a fairly long history of dissatisfaction with the customary land-tenure system, with disquiet largely related to lack of security of tenure in general, while in the urban sector, customary tenure was considered to have hindered the development of an efficient urban land market and encouraged low density-urban sprawl and irregular peri-urban settlements.
However, efforts to reform customary rules were first initiated in 1967, when the government enacted the Land (Procedure) and the Deeds Registry Acts of 1967. The former outlined procedures for land allocation by customary chiefs, who were to work with elected Land Advisory Boards, and formalised the customary land allocation system by introducing documentation as proof of allocation. The Deeds Registry Act aimed to facilitate the registration of titles to non-agricultural and principally urban land. The two laws did not, therefore, propose any substantial change to the land allocation process. They still upheld the customary principle of usufruct and non-transferability of land. The basic right remained an 'allocation', which conferred usufruct in perpetuity.
Significant reforms were attempted only in 1973, with the enactment of the Land Act of 1973 and the Administration of Lands Act of 1973. The former covered rural land and remained in force until 1980, when it was repealed by the Land Act of 1979. Although it still upheld the provisions of the Land (Procedure) Act of 1967, it provided that consultation with advisory boards was a statutory requirement that was legally binding on the chiefs.
The Administration of Lands Act of 1973 was meant for urban land and was the first legal instrument to attempt to nationalise urban land by conferring on central government exclusive power of land administration in all designated urban areas. It was also the first piece of legislation to introduce the notion of a leasehold tenure, as well as land revenue by way of assessed ground rent. However, it was never brought into operation, because it was alleged that it proposed land tenure changes that threatened the authority of traditional chiefs over land, and accordingly they obstructed its implementation.
Further land reform efforts were tried in 1979, involving the consolidation of the two 1973 Acts into the Land Act of 1979. In contrast to the 1973 Acts, which had to accommodate the government's intention to allow chiefs to continue to allocate land, the 1979 Act was premised on a cautious approach involving an evolutionary transformation of the customary land allocation process. This evolutionary change was to begin with the establishment of land allocation committees chaired by chiefs in an ex-officio capacity, but with provision for direct elections to all committees at some time in the future. To achieve this, the Act nationalised all land in Lesotho, with rights to be leased from the state.
Thus, similar to many other parts of post-colonial Africa, the state became the trustee where it previously was the King and his chiefs, and all titles to land in urban areas (except land used principally for agricultural purposes) were converted to leaseholds. For purposes of allocation, the 1979 Act established a system of urban land allocation committees, the members of which were all nominated by the Minister responsible for Lands.
In urban areas, the Land Act of 1979 also made provision for land to be set aside as Selected Development Areas (SDAs) for the development or reconstruction of existing built-up areas; the construction or development of new residential, commercial or industrial areas; or the readjustment of urban boundaries for the purposes of town planning.
When an area of land had been declared an SDA, all existing titles and privileges to land were nullified pending the grant of substitute rights by the Minister. SDA provisions were found to be useful tools for rectifying defective titles that had arisen from 'valid' allocations by chiefs under repealed laws, but that had not been registered as required by the Deeds Registry Act of 1967. SDAs were also used to make new land grants by the Minister, as long as a declaration was made in the 'public interest', also defined at the discretion of the Minister.
However, the apparent misuse of the SDA clause was heavily criticised by the Land Act Review Commission set up in 1987 to look into implementation problems besetting the Act. The Commission noted that although the SDA was conceived for laudable public policy objectives, Ministers had misused it. The Commission recommended that the clause be maintained, but that the Minister's powers be substituted by those of local authorities. The Commission noted further that the Act made no provision for the consultation of affected parties prior to SDA declaration and recommended that consultation be made a statutory requirement. Regrettably, these recommendations were not implemented.
The Land Act of 1979 further provided for the extension of urban boundaries to cover substantial peri-urban areas where agricultural land was being rapidly converted into urban uses. The government had hoped that the Act would halt the conversion of arable land to urban development and promote orderly urban growth. However, with the exception of a few areas where the state successfully appropriated land, the extension of urban boundaries to cover hitherto peri-urban villages and their farmland did not, in practice, result in any substantial change to the allocation of peri-urban land by customary chiefs.
The latter have continued both to allocate land and to authenticate allocations derived from private subdivision, contrary to the provisions of the law. As a result, bureaucratic allocations by government agencies tend to be predominant within the old town boundaries, in which formally laid-out neighbourhoods are located, whereas outside of the old town boundaries where land is under customary land holding, informal systems predominate.
The 2006 population census shows that most people access housing land through allocation by customary chiefs (67%), followed by inheritance (20%), purchase from someone else (7%), government agency (4%) and unspecified other (2%). Analysis of urban level data in the Maseru Urban Planning and Transport Study of 2010 shows more or less similar access patterns in Maseru, although inheritance was not as significant. Most households in Maseru had acquired land from customary chiefs (53%), followed by those who had purchased land from others (19%), government agency (13%), inheritance (9%) and other unspecified sources (6%).
What these data show is that the delivery of land by government and its agencies has been minimal compared to other actors. More localised neighbourhood studies have shown that the proportion of households who had acquired their land from or with the assistance of customary chiefs, especially in peri-urban neighbourhoods, could be in the range of 70% to 80%.
The Maseru study also shows that more than 50% of urban housing stock was rented compared to 45% being owner-occupied. Most rental housing consisted of Malaene (rows of single and double rooms with shared latrines and water).
The Millennium Challenge Corporation was established in 2004 by the US government to manage its foreign aid differently and with a main focus of eradicating poverty through sustainable economic growth. Eligible countries establish their own implementing agencies; in Lesotho this is the Millennium Challenge Account-Lesotho (MCA-L). The priority sectors of the funding agreement between the MCC and the Lesotho government, called the Compact, are health, water and private sector development. Lesothos' Land Administration Reform Project forms part of private sector development and aims to achieve better land laws and policies; greater awareness amongst citizens, especially women, of land rights; increased efficiency of issuing lease titles to people in urban areas; and the establishment of a Land Administration Authority that would provide improved land administration services.
It was anticipated that improved land administration services would help to reduce land-related transaction costs and inefficiencies and thereby unlock markets in leasehold rights. To this end, significant legislative and institutional reforms have been undertaken, culminating in a series of new Acts and the establishment of a new Land Administration Authority. Some of these are:
However, when reviewing the MCA-L, its land reform activities have focused exclusively on titling, at the exclusion of the supply of new land into the market. The MCA's regularisation project is in effect a mass titling project and international evidence would seem to suggest that the poor, especially the landless, rarely benefit from such programmes. In addition, while reforms are clearly visible and significant with respect to land administration, matters relating to land management remain very similar to those under the Land Act of 1979. Therefore, the flawed systems of land supply and management that existed under the repealed Land Act of 1979 have been left unreformed. This means that the urban poor will continue to rely on informal systems of access to urban land.
As indicated earlier, more than 70% of Lesotho's population obtain land through informal systems. But it is not only the urban poor who do so; recent evidence from the ongoing regularisation scheme in Maseru points to the active participation of relatively wealthy people who have possibly acquired land for investment in rental housing (malaene).
Malaene is a significant feature of privately provided urban low-income rental housing in Lesotho, which has not only eased the pressure on the public sector to provide housing for the urban poor, but has also ensured that slums are nearly non-existent. However, although something is known about the profiles of tenants of malaene, those of their landlords, their investment rationale and the urban land market impacts of their activities remain unknown.
Moreover, due to various constraints that derive from inefficient land management and administrative systems, the formal property market in Lesotho has remained undeveloped and is significantly inactive. Evidence is found in the near absence of estate agents in Maseru except for small companies that provide a variety of property-related services, with estate agency constituting only a small component of their services. It is acknowledged, however, that in recent years the number of informal estate agents have increased, although the majority of them are unlikely to have been 'trained'.
From the study there appears to be three broad areas for further investigation and work, including a detailed review of land supply to the urban poor, an assessment of the malaene rental housing - or perhaps even a comprehensive housing market analysis; and an assessment of the impact of the MCA-L's mass titling programme on the poor.