Lesotho and the Land Question

“Sir George Grey, restore to me all the land that was in my possession before the arrival of the Afrikaaners” – Morena Moshoeshoe I – 31st July, 1858.

Land is a fundamental asset for sustainable economic development. Moreover, land restitution is critical for self-determination, sovereignty and total independence. In international law and relations, ownership of territory is significant because sovereignty over land defines what constitutes a state.

And it is based on this assertion that, without the restitution of its stolen territories, Lesotho isn’t totally independent and its sovereignty remains largely affected. Available evidence suggests that a land incorporates in it, renewable and non-renewable resources that are key in addressing socioeconomic ills detrimental to short, medium and long-term political and economic development.

Therefore the loss of land either through degradation and/or depletion or conquest unquestionably leads to increased food insecurity.

The land question in Lesotho, specifically the stolen Basotho territories found in certain parts of what is today the Northern Cape, Eastern Cape, Mpumalanga, KwaZulu-Natal provinces, and the entire Free State province has often been ignored by many if not all governments of Lesotho post-1994.

Mostly with political movements and people who advocated for its return facing internal and external sabotage to either delay or thwart advocacy for the return of these territories entirely. This issue is periodically only mooted in the context of “land” being a ‘political campaign ticket’ lacking sufficient ideology, patriotism and political will.

However, the land question generally, but the stolen Basotho territories specifically is not a mere politicking ticket but rather a more serious issue of national sovereignty. Lesotho (i.e. with Basotho being an agricultural society) can never fully alleviate poverty or address the challenges confronting food security in the absence of these territories.

As a landlocked state, Lesotho’s economic security remains fragile.

Reclaiming the stolen territories a necessary political-legal agenda vis-à-vis culture. The cessation of Basotho territories will address Lesotho’s very limited resource base and decades-long extreme underdevelopment.

The issue of national identity, self-determination and total independence is inextricably linked to the return of its stolen territories.

What seems to be lacking specifically with regards to the land question in Lesotho among the masses is the necessary knowledge about the importance of these stolen territories that is essential in enhancing the brittle patriotism in the land discourse.

Because not acknowledging the positive outcomes that would come with the return of the Free State to Lesotho and the fact that Lesotho is not independent until retrocession and restitution of the Free State to Lesotho is final, it is not only detrimental to the knowledge and history of Lesotho and its nation respectively, but also to a determined restitution cause.

The total retrocession and restitution of these territories especially the Free State would mean an increase in arable land (which currently stands at 10%) for a population of 2.1 million agricultural people, especially if one considers the fact that most of Lesotho’s arable land was destroyed by dam constructions at the behest of and only to unevenly benefit South Africa.

In addition, the Free State is rich in a number of renewable and non-renewable resources vis-à-vis their quality. These resources include gold found in Allanridge, Welkom and Virginia; coal in Sasolburg; and, diamonds found in Jagasfontein and Theunissen.

Furthermore, the Free State falls under what is commonly referred to as “The Maize Triangle” possessing the best maize. This maize triangle stretches from Lichtenburg (North West Province), Hobhouse (Free State Province) to Ermelo (Mpumalanga Province) thus forming a triangle.

Furthermore, the same region (i.e. the High Veld in the Free State) is recognised, among four other parts of the world (i.e. the Prairies in Canada, the Pampas in Argentina, the Steppes in Ukraine, and the Downs in Australia), as possessing rich soil able to sustain agricultural life.

In addition to this is the recent discovery of large helium deposits. Currently, helium is produced by fewer than 10 countries in the world, and the Free State helium reserves could be the richest and cleanest in the world. Despite trade routes, Lesotho remains dependent on South Africa simply because it lacks resources (found in the Free State) essential for the development of a competitive economy and a prosperous social and political life.

Therefore, the restoration of these territories is viewed in the sense that they are essential to the improvement of Lesotho’s economic viability, and to fully secure its independence. As such, Basotho’s concern over issues of economic wellbeing should mean a concern over the restoration of these territories.

Without these territories, Lesotho is intentionally made to exist within the context of a virtual ‘bantustan’ or ‘high commission territory’ with a certain degree of political administration while achieving less economic success with subsequent dependence on South Africa.

Therefore, to ensure economic independence in Lesotho, the stolen territories must be returned.

The restitution of these territories can be addressed and/or resolved in a number of ways.

These include diplomatic negotiations, regional inter-governmental organisations (i.e. the Southern African Development Community (SADC)), continental forums (i.e. African Union, through the African Union Border Programme (AUBP) which serves as a mechanism for the settlement of border delimitation and demarcation especially in the case where natural resources are at play), and international courts (i.e. International Court of Justice (ICJ)) approached as a court of last resort.

However, the immediate reality of South Africa agreeing to cede these territories to Lesotho remains unlikely given the fear that this might create a domino effect in that, besides the Basotho territories, South Africa will virtually lose some parts of its territories to its neighbouring countries which would eventually follow suit in claiming their territories.

Moreover, there is a general fear of the domino effect territorial restitution will cause within South Africa with regards to respective ethnic groups. In addition to its nascent rejectionist attitude is South Africa’s attitude with the rest of Africa that is reminiscent of the apartheid regime. Point of reference is the Afrophobia prevalent in South Africa, and the 1998 Operation Boleas in Lesotho among others.

The expectation from the post-1994 South African government is to continue maintaining, like its predecessors, that Lesotho has no claim in international law having lost these territories by conquest and cession.

This is an easy and commonly expected position given what is often seen as the democratic government’s longstanding pleasure in the inheritance of the attitude, history and developments of the former apartheid regime. Would it therefore prove inadequate to place the leaders of democratic South Africa (i.e. from Mandela to Ramaphosa) in the same category as those who refused the restitution of Lesotho territories pre-1994 (i.e. from Sir George Grey to Louis Botha, Verwoerd, PW Botha and de Klerk)?

In consideration of historical-colonial events and contemporary political factors, what is South Africa’s moral justification to flourish on a colonial legacy of African bloodshed on the one hand while it claims to promote decolonisation and champion democratic principles? This will mark one of many flaws and contradictions to the National Democratic Revolution (NDR) principles that an ANC-led government asserts to be advancing.

The reality is, Lesotho’s moral claim is simply based on a crime committed to its people on the one hand, while on the other hand South Africa is deliberately inheriting a crime, and further committing the crime itself by the continued possession and developments of these territories.

In line with a Pan-Africanist doctrine, that is the Nyerere doctrine of State Succession, “new African states cannot enter into inheritance agreements, and apply the pre-independence treaties concluded by the colonial powers on their behalf”.

Approaching the ICJ won’t be a new phenomenon on issues of territorial restitution and the settlement of territorial disputes, which are commonplace before the ICJ. From just Africa alone, there are approximately 13 contentious cases concerning territorial or boundary disputes between states submitted to the ICJ. This is largely due to the inability of regional (i.e. SADC and the Namibia vs.

Botswana dispute over the Okavango river basin) and continental organisations to address and take responsibility for territorial disputes emerging within their jurisdiction.

Firstly, Lesotho can approach the ICJ on the basis of self-determination, among others, for the settlement of these disputed territories. In modern international law, the right to self-determination is significant. According to the ICJ, the idea of self-determination has developed into a legal norm rather than merely a political premise.

Self-determination has evolved into customary international law in the wake of post-World War II secessionist movements, the decolonisation process, and several UN resolutions.

Self-determination has evolved towards a more participatory ideal that encompasses participatory rights.

Two modalities of self-determination can be distinguished, that are, internal (i.e. aspiring towards outcomes internal to the state such as the establishment and/or access to democratic sociopolitical rights) and external self-determination (i.e. aspiring towards outcomes that are external to the state such as independence and/or irredentism or restitution).

Within the context of these two modalities of self-determination and given the status that the idea of self-determination holds in international law, Lesotho has achieved and advanced the former and now seeks the realisation of the latter.

Secondly, Lesotho can rely on a number of factors (i.e. Treaty law, economy, culture, history, elitism and ideology) in justifying legal claims to its territory before the ICJ. This is consistent with the nine justifications used to assess whether a specific rationale is dispositive or, at the very least, highly determinative in the decisions of land border cases decided by the ICJ.

As compared to other basis for territorial claims, the treaty justification is more legal and less emotionally persuasive in nature. The treaties serve as evidence of other states’ consent—or lack thereof—to certain boundary changes.

The court may employ treaties as factual evidence of how the borders stood at a particular time. One important issue moves the ‘conquered’ territory notion to the ‘stolen’ territory belief.

In 1854, when the British authority reached a decision through the Bloemfontein declaration, Basotho were not consulted on this matter with the final outcome and decision being subsequently being imposed on them. For instance, that convention (i.e. the Bloemfontein convention) made no mention of Moshoeshoe I. This constitutes a stealing, and not a conquering of territory.

Economic justifications for territorial claims assert that the territory in question is “necessary to the viability or development of the state.” For example, the territory may be necessary to exploit raw materials, to cultivate land, and the like. Cultural claims to land are sometimes compared to claims based on the self-determination.

Ideally, self-determinative actions would result in a more culturally homogenous state. Historical claims to territory are based on historical priority (first possession) or duration (length of possession).

Although effective control (possession) presents the strongest claim under property law, historical claims create an underlying entitlement to territory, regardless of whether a state has actual or constructive possession of the land at the time of the claim. Historical claims often relate to cultural claims, because the greater the cultural importance of the territory, the stronger the historical claim to it.

Because this “includes both priority and duration and expresses the ultimate case of man-land symbiosis,” historical claims are more persuasive when the territory in question is the claimant group’s homeland.

The nation’s identity is “fleshed out, revealed as a community of fate, and given genetic legitimacy” by the history of the people and their homeland. It may be based either on real-life occurrences or on intentionally made up myths. The identities of the land and its people support one another.

Elitist claims take on a more contemporary and visible form based on (superior) technological skill.

A specific group asserts sovereignty over a territory by virtue of possessing the ability to utilize the land’s potential to the fullest. Such assertions are in line with the labour theory of property law, which accords property rights to the individual (or entity) who works to make the land productively and invests in it.

Lesotho is now able to invest in and use land productively either through mining, farming etc. Ideological justifications for territorial claims refer to the anticolonial ideological justification, which argues that colonial borders are per se inappropriate delimiters of territory for moral and/or legal reasons.

However, it is essential to note that international law is universal and not partial in its application, especially with regards to the socioeconomic and political activities of the Global North vis-à-vis the Global South.

For as long as the Basotho nation exists, and within an independent Lesotho, the call to reclaim the stolen territories will continue to advance and prosper. In essence, ‘the land should return’ aspiration can never simply die while a Basotho nation exists.

To a large extent, it can be acknowledged that Lesotho’s persistent political instability, poor institutional memory, lack of patriotism, lack of national consciousness and ideology among other things has led to the inability of any government of the day to heed a call of reclaiming these territories, and subsequently take advantage of international law and resolutions.

Moreover, one main concern confronting the land reclamation issue is a lack of patriotism and political will. While the governing structures seem to lack a clear mandate or ideology relating to the land question, there is also an uncomfortable and unessential silence by Lesotho’s monarch over an issue that is less political but largely characteristic of Basotho national identity, sovereignty and self-determination.

The position of King Letsie III as head of state that is symbolic of a sovereign Basotho nation, and his international standing as witnessed in many international high-level panels and gatherings can help immensely in elevating this issue on the international political agenda.

The land question is an ‘all Basotho’ effort, with no one exempted from this determined attempt. The needed patriotism cannot take place in the absence of knowledge. Moreover, the much needed patriotism and political will to see the return of these territories a reality will remain highly affected by poor commitment to this cause by relevant stakeholders.

In the short and medium-term address of Lesotho’s legitimate moral claim South Africa must, within the context of Basotho’s self-determination, award participatory rights to Basotho in these territories that are currently awarded each and every South African citizen.

That is, the guarantee of land (i.e. farming, mining etc.), access to employment and education (i.e. especially in the case of university, Basotho should not be required work and study permits among other things), and guarantee the ownership of property (i.e. commercial and residential).

The truth is not measured through mass appeal. As small in population numbers to this notion as there could be, however, the truth will remain that these territories are stile and rightfully belong to Lesotho.

Dr Mahlakeng Khosi Mahlakeng