Government of the Kingdom of Swaziland MINISTRY OF HOUSING AND URBAN DEVELOPMENT MINISTRY OF TINKHUNDLA ADMINISTRATION AND DEVELOPMENT

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1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Government of the Kingdom of Swaziland MINISTRY OF HOUSING AND URBAN DEVELOPMENT MINISTRY OF TINKHUNDLA ADMINISTRATION AND DEVELOPMENT SWAZILAND LOCAL GOVERNMENT PROJECT (SLGP) (RPF) DECEMBER RP642 rev 1 Modified August 2010 to reflect changes in project components.

2 TABLE OF CONTENTS Page No. 1.0 Introduction Background Legal Framework Resettlement Policy Implementation Guidelines...16 a) Resettlement Responsibilities...16 b) Resettlement Principles...17 i Previous Standard of living...17 ii Compensation...17 iii Assistance with Relocation...18 iv Support during Transition Period...18 v Vulnerable Groups...19 vi Community Participation...20 vii Resettlement Planning Monitoring and Evaluation...21 Page ii

3 1.0 Introduction SWAZILAND LOCAL GOVERNMENT PROJECT The Government of Swaziland (GoS) has requested the assistance of the World Bank in preparing and implementing the Swaziland Local Government Project (SLGP). The project development objective is to assist the Government of Swaziland to develop institutionally strengthened rural local governments (Tinkhundla) and urban local governments. 2.0 Background About a third of Swaziland s population lives in urban areas, and the urbanization rate in the country is approximately 5-6 percent per annum. Migrants are settling in the peri-urban areas of the two major urban centres, Mbabane and Manzini, which hold 70% of the total urban population as well as in several secondary centers, including Nhlangano, Siteki and Piggs Peak. In addition, a number of traditionally administered centres are growing very rapidly. The periurban growth points are located on Swazi Nation Land (SNL) and growth in these areas has been rapid and uncoordinated. As a result, traditional institutions in their present form are challenged to keep pace with the service needs of the growing populations. It is widely recognised within the communities that service provision and operations and maintenance are inadequate to meet the needs of the communities. The recently enacted Constitution begins to address this problem, as it mandates the establishment of a single countrywide system of local government within five years. The specific arrangements for and coverage of new local governments are still to be determined, and the SLGP could play a key role in this respect. The Swaziland Urban Development Project (SUDP), for which the World Bank loan closed in March 2005, was the first phase of the Government s long-term local governance development program. The SUDP aimed at increasing the delivery and improving the management of basic services and improving living conditions of low-income urban household in the two main cities of Swaziland. Under the SUDP, a number of positive outputs have been achieved: (i) adoption of the intergovernmental fiscal transfer study by Cabinet; (ii) revision of the Rating Act; (iii) reduction in the backlog of critical infrastructure in Mbabane and Manzini, resulting in expanded water and sewerage network, improved quality of the road network, and improved solid waste collection; (iv) revision of the Physical Planning Act; and the carrying out of an Urban and Peri-Urban Land Management Study. Many of the reforms and procedures introduced through the SUDP have been mainstreamed into the operations of the implementing agencies and are coordinated through central government. GoS recognizes that the SUDP was conceived as the first step in a process to develop and improve the quality of life of the urban and peri-urban populations. Page 1

4 Project development objective and key indicators The project development objective (PDO) is to develop institutionally strengthened Tinkhundla and urban local governments (ULGs). Achievement of the PDO will be measured in terms of the following key performance indicators: (i) a minimum of 75 percent of the eight targeted Tinkhundla under the project receive a score of 80 or above on their final performance assessments; 2 and (ii) a minimum of 75 percent of ULGs receive a score of 80 or above on their final performance assessments. 3 (iii) Direct project beneficiaries, of which percent female. Achievement of these targets would be measured through the annual Performance Assessments developed under the project and through the project monitoring system. In addition, several intermediate results indicators have been identified to track progress toward those objectives, as well as to track physical progress under the project. While the PDO of the project and the key performance indicators focus on the institutional strengthening of local governments, the higher level goals which achievement of the PDO will ultimately serve are improved service delivery and enhanced governance at the local level, including in the rural and peri-urban areas where most of the poor reside, and the development of a fiscal framework that would allow predictable resource transfers to rural and urban local governments. Improved local government performance will positively affect the services received by the poor; it will also through expanding both the level and efficiency of public sector investment have positive impacts on the business environment of these areas. Project components The project will target eight Tinkhundla (about 15 percent of 55 Tinkhundla in the country) and all the ULGs (12). Selection of the Tinkhundla was based on objective criteria, derived from those Tinkhundla that include areas that have been defined as rapidly growing, in order to direct impact to where populations are tending to increase most significantly. The long-term vision is that processes initiated and tested under the project will be translated into a fiscal structure that will be mainstreamed into the government s fiscal system for local governments, and may be expanded to all Tinkhundla. At Government s request, funding has been included under Component 3 to undertake an assessment of fiscal structures to support local governments to deliver and sustain local services. 2 Performance Assessments for Tinkhundla include performance indicators in the areas of (i) participatory planning and budgeting; (ii) administrative effectiveness; (iii) reporting and disclosures; and (iv) sustainability. 3 Performance Assessments for ULGs include performance indicators in the areas of (i) financial stability and good governance; (ii) administrative efficiency; (iii) project execution and service delivery; and (iv) participation, transparency, and accountability. Page 2

5 The project consists of three components. Component 1 supports eight selected Tinkhundla through the provision of performance-based funding for small-scale infrastructure investments selected through local planning and budgeting processes, allied with capacity building assistance. Component 2 follows a similar structure in supporting the 12 ULGs, though with important differences in implementation mechanisms and specific targeting of grant funds to the roads sector. While Components 1 and 2 share a common PDO as well as higher-level goals, the respective local governments are at different stages of capacity, governance and systems development, and a dual strategy (in terms of different depth and breadth of functions and performance levels) has been designed to move them towards the ultimate goals described above. Similarly, while the financing available for infrastructure investments under both Components 1 and 2 cannot be considered as block grants, the design and operation is intended to serve as a potential model for a future fiscal transfer framework. Component 3 finances project management, formal training and technical assistance for selected studies, and transactions advisory services for ULGs that are pursuing commercial borrowing. The composition of the project is described in more detail below and further elaborated in Annex 4. Component 1 Tinkhundla Infrastructure and Capacity Building Support (US$7.1 million IBRD; US$660,000 local communities) This component comprises two inter-dependent sub-components supporting eight Tinkhundla located in peri-urban areas or rural growth nodes. The sub-components are: (a) Tinkhundla Basic Infrastructure Financing the provision of annual, performance-based capital funding for smallscale public infrastructure, underpinned by (b) Tinkhundla Capacity Building Support access to on-the-job, just-in-time capacity building support provided by a Mobile Mentoring Team and designed to strengthen Tinkhundla capacity and facilitate the achievement of performance requirements. Tinkhundla as administrative bodies have operated at a low level of performance over several years. Under GOS s new emphasis on local government responsibility for service delivery, policies are focusing on enhancing the role of Tinkhundla in this regard. In order to take account of their limited experience and capacity, GOS is sequencing its institutional strengthening strategy for the Tinkhundla by starting with initiatives that address their governance and administrative systems. The performance requirements are therefore modest and focus on establishing principles of accountability implicit in the participatory preparation of a simple three-year investment plan and an associated annual capital budget, and introducing a process to support the Tinkhundla in establishing an asset registry of all existing public assets and maintaining/updating it as new investments take place, irrespective of their funding or implementing source. Actual implementation of sub-projects financed by the Project will be undertaken under contract by the Microprojects Programme (MP) 4, with formal procedures specified for the commissioning and handover of sub-projects. Tinkhundla will enter into operating contracts for infrastructure assets prior to their handover where appropriate. 4 MP is a government agency under the MEPD that has been implementing European Union- and governmentfunded community-based development projects for approximately 30 years. MP is in transition from being an implementing agency under MEPD to being a parastatal. Page 3

6 A basic annual Performance Assessment (PA) of each Inkhundla s success in meeting simple consultative planning and budgeting benchmarks will determine its eligibility for the funding allocation for the forthcoming year. Assessments will include review of criteria in the areas of (i) participatory planning and budgeting; (ii) administrative effectiveness; (iii) reporting and disclosure; and (iv) sustainability Key criteria include the holding and record-keeping of meetings, preparation of rolling three-year capital investment plans, public disclosure of planned and implemented investments, and the development of an asset registry. The PA will be undertaken by a team of independent evaluators financed and managed under Component 3. Sub-component 1(a): Tinkhundla Basic Infrastructure Financing. This sub-component comprises annual performance-based funding for small-scale infrastructure investments. Potential investments would be limited to those with a public benefit, circumscribed by a negative list of ineligible investments, defined in accordance with Tinkhundla s functional responsibilities. The total annual envelope available for allocation to Tinkhundla is proposed at US$600,000. While this represents an average allocation per Inkhundla of approximately $75,000 per annum, the actual allocation per Tinkhundla will be made on a per-capita basis within the overall budget. The amounts and allocation of funding will be reviewed at Project mid-term to determine whether the amounts are appropriate given planning and implementation capacity and impact. Prioritization and selection of infrastructure sub-projects and preparation of the budget will be the responsibility of the relevant Tinkhundla. Implementation of the investments will be contracted to the MP through an Implementation Agreement with GOS and individual agreements with each Tinkhundla. The MP has significant experience in small-scale infrastructure investment in rural and peri-urban SNL. All capital funds allocated to the Tinkhundla will flow through the Project Support Team directly to the MP. As Tinkhundla do not yet have sufficient operating budget or staff to ensure the maintenance of assets, arrangements for the maintenance of investments will following existing MP procedures. All investments funded by the Project will follow World Bank fiduciary and safeguards policies. Sub-component 1(b): Tinkhundla Capacity Building Support. This sub-component will provide capacity building assistance to strengthen the ability of the Tinkhundla to: assess needs in a consultative manner; prepare prioritized three-year public infrastructure investment plans; determine and approve budgets for the forthcoming year; and oversee contracting arrangements for sub-project implementation. The sub-component will finance a mobile team, the Rural Capacity Building Mobile Team (RCBMT), comprising local administration and planning, financial management, community consultation and accountability, and technical and contract management experts that would provide hands-on, on-demand assistance to the eight targeted Tinkhundla. The mobile team would spend at least two days a month at each Inkhundla, working with the council and staff to identify issues and challenges and providing on-the-job training as needed. The team would also assist the Tinkhundla in developing the ability to identify infrastructure needs, consult communities, solicit proposals, select priority sub-projects to be financed under the project, and work with the MP in their implementation. Component 2 Urban Infrastructure Grants and Capacity Building Support (US$16.35 million IBRD; US$2.2 million Urban Local Authorities). Component 2 comprises two inter-dependent sub-components: (a) Performance-Based Infrastructure Grants; and (b) ULG Capacity Building Support. The two sub-components, Page 4

7 operating together, are intended to strengthen the ability of ULGs to provide and sustain the delivery of local services. This component is designed on similar principles of incentive-driven capacity building to those described for Tinkhundla. An annual, independent PA will be undertaken of each ULG participating in the project by a team of independent evaluators financed under Component 3. The performance criteria will include Mandatory Minimum Criteria (MMCs) and a set of more comprehensive performance requirements measuring efficiency, transparency and accountability in financial management, planning, safeguards, budgeting, and implementing and sustaining the delivery of local services funded under the project. Failure to meet any one of the MMCs (which include acceptable external audits, an approved annual budget; expenditure levels of the capital budget for the preceding fiscal year representing at least 60 percent of available funds, and compliance with the use of grant funds) will disqualify the ULG from the grant for the forthcoming year. In addition to meeting all of the MMCs, a ULG must achieve its annual performance targets on the PA to be eligible to receive the grant for the forthcoming year. A ULG that is ineligible one year in the program may be eligible the next, subject to meeting the MMCs and minimum score in the relevant PA. Sub-component 2(a): Performance-Based Infrastructure Grants. This sub-component finances annual performance-based conditional capital grants to the 12 ULGs. A total of US$ 11 million will be available under the sub-component, i.e., US$ 2 million each year (and US$ 1 million during the first year), to be allocated across the ULGs on a population-based formula similar to that used by the GOS in allocating the existing Capital Investment Programme (CIP). Access to the grants will be subject to each local authority s meeting the MMCs and the annual performance targets in various areas of municipal management (described above). The amount of the annual performance grant available to qualifying ULGs will match that provided by the existing CIP, though subject to different rules. Use of the grants would be limited to investment in local (municipal) roads and related drainage and pavement infrastructure. This focus is intended to demonstrate the ability of the ULG to effectively and accountably utilize funds to deliver improved service with a visibly high impact. Funds must also be matched from other ULG revenues for a minimum additional 20 percent of the grant amount. The focus on a single, high-priority sector offers ULGs the opportunity to develop the capacity to make efficient investment choices, as well as introduce asset management systems that support the sustainability of the investments. Selection of roads to be financed would be left to the discretion of each ULG. ULGs will execute all expenditures on sub-projects, subject to World Bank fiduciary and safeguards policies. Sub-component 2(b): Capacity Building Support. This sub-component finances capacity building support to strengthen the ULGs to develop sound strategic management, administrative, and financial management systems to effectively deliver local services. Assistance will include mentoring, in the form of a four-person mobile team the Urban Capacity Building Mobile Team (UCBMT) comprising expertise in key areas of municipal management, finance, planning and community consultation, and procurement and asset development and management. The mobile team would spend one to two days per month with each ULG, as needed. Page 5

8 Component 3 - Project Management and Technical Assistance (US$ 7.43 million; US$ 3.43 million, IBRD; US$ 4.0 million, GOS). This component will comprise the following five sub-components: Sub-component 3 (a): Project Management. This sub-component supports the establishment and operations of a Project Support Team (PST) that will manage implementation of the project. The PST will be responsible for overall project implementation, monitoring and evaluation, oversight of fiduciary and safeguards compliance, all project reporting, and auditing. The full composition and structure of the PST, which is discussed in Annex 6, will include a management team comprising a Project Coordinator, who will also serve as the Component 2 Manager, and a Deputy Project Coordinator, who will also serve as the Component 1 Manager. They will be assisted by a Technical Assistance Coordinator who will oversee the formal training, studies, and the PA processes for both the Tinkhundla and the ULGs, and who will also support the Component Managers in liaising the formal training with the work of the mobile capacity building teams. The management team will also be assisted by a Procurement Specialist, a Project Accountant, and an Environmental and Social Safeguards Specialist. The PST will be fully financed by the GOS, including PST staff costs, consultant costs for project management tasks not undertaken by PST staff (excluding the PAs), and the cost of goods and services necessary for project implementation (e.g., office expenses, communications and information dissemination costs, workshops, etc.). The managers for Components 1 and 2 and the TA Coordinator will be responsible for ensuring the effective functioning of the capacity building support teams, working through the respective Mobile Team Leaders. The PST will also be responsible for contracting with the MP, on behalf of each of the beneficiary Tinkhundla, to implement the capital investments selected by the Tinkhundla in their annual budgets. Sub-component 3 (b): Formal training and capacity building. This sub-component will finance (i) formal training on project design and implementation requirements, (ii) selected courses for local government officials to complement the capacity building/mentoring program under Components 1 and 2, and (iii) local government systems development, where recommended. This sub-component will be financed under the project with World Bank funds, and will be overseen by the TA Coordinator. Sub-component 3 (c): Technical assistance for local government borrowing. This subcomponent will provide technical assistance to ULGs that are investigating longer-term capital finance for infrastructure investment. Technical assistance would consist of transaction advisory services to support ULGs to prepare for and access commercial finance, including targeted assistance to ULG financial managers to assess and project overall financial capacity and appraise various types of financing. This sub-component will be financed under the project with World Bank funds, and will be overseen by the TA Coordinator. Sub-component 3 (d): Performance assessments (PAs) and related reviews. This sub-component will finance: (i) the PA process, including the consultant teams to undertake the assessments and Page 6

9 their logistical requirements; (ii) periodic reviews of project impact; and (iii) studies to assist the GOS to develop a sustainable local government financial framework. This sub-component will be financed under the project with World Bank funds, and will be overseen by the TA Coordinator. Sub-component 3 (e): MHUD and MTAD LG monitoring systems. This sub-component will finance the implementation of strengthened LG monitoring systems in MHUD and MTAD. This sub-component will be financed under the project with World Bank funds. Infrastructure investments are likely to have some environmental and social impacts such as the small scale community driven activities such as road paving. It is envisioned that the qualifying local authorities will use resources for capital investments for improved service delivery. As the project locations have not yet been confirmed and as a result a Resettlement Policy Framework has been prepared to minimise adverse environmental and social outcomes. Once the locations are agreed with the GoS, a Resettlement Action Plan (RAP) will be developed in line with guidance and criteria expressed in the RPF. All RAPs will be subject to World Bank clearance prior to commencing with any civil works. Compensation will be made available to three sets of stakeholders. First owners of free hold land will be eligible for compensation based on the title deed, the current value of the land and any improvements on the land. The second type of stakeholder to be compensated is the established resident. Residents falling into the second category defined as residents of the area without title deed or living on traditionally held land are also entitled to compensation however this will be limited the value of improvements on land held and costs associated with relocation. The third category are those who live as illegal squatters, without legal title nor traditional claims to land, these stakeholders will be compensated for relocating and value of improvements on land. A cut-off date for inclusion in the project will be determined by the preparation timeline which will be after the baseline census, socio-economic survey, and aerial photographs have been completed. 3.0 Legal Framework A total of approximately 80 legislative instruments related to local government and land issues (and hence urban and peri-urban development) have been identified. Some of the key pieces of legislation are: a) Subdivision of Lands Act, 1957 This is an Act to consolidate and amend the law relating to the sub-division of land in Swaziland. The approval of Natural Resources Board is required for subdivision, whilst the Surveyor General is required to approve the diagram and the Registrar of Deeds to register transfer/lease. A discussion concerning the township establishment process, in which this legislation plays an important part, is contained in relationship to the Human Settlements Act, below. Page 7

10 b) Acquisition of Property Act, 1961 This Act provides the authorization and procedures for compulsory real property acquisition for public purposes and provides for settlement of compensation through the establishment of a Board of Assessment. The act states that structures affected by acquisition identified by MHUD. After identification of the properties, an independent valuation is sought then based upon the outcome, residents in affected areas are invited to negotiate with the GoS on an individual basis. Once agreement is reached the residents are compensated prior to relocation. In cases where the resident cannot reach agreement with the offered compensation, Minister of Housing requests convening of the Board of Assessment which is constituted by the Chief Justice who appoints a judge to be the chair of the Board. Once established the Minister gazettes the announcement on the Board of Assessment by legal notice. The decision on compensation by the Board of Assessment will be legally binding for the Ministry and the resident. c) Town Planning Act, 1961 This act makes provision for the preparation and carrying out of town planning schemes in declared urban areas. It establishes the Town Planning Board, its functions, powers and duties. It authorizes the preparation of town planning schemes, the approval of schemes, variation of schemes, enforcement of schemes and compensation for injurious affection. Injurious affection is defined as being negatively affected by changes to the Town Planning Scheme such that previously established businesses or industries become illegal under new legislation. d) Land Survey Act, 1961 The act provides for the survey of land and matters incidental thereto. It deals with interpretation including the definition of diagram, general plan, lot, owner, registration and township. It deals with matters relating to the Surveyor-General and Surveyors, surveys and resurveys, beacons and boundaries. e) Deeds Registry Act, 1968 This Act consolidates and amends the laws in force in Swaziland relating to the Registration of Deeds. It establishes the Deeds Registry, appointment, duties and powers of the Registrar. It deals with the registration of land including transfers, substituted title deeds and endorsements and covers; change of title by endorsement; townships including requirements in case of subdivisions of land into lots, transfer of township, extension of boundaries of an existing township. It further deals with bonds including execution, cession, transfer and registration of notarial bonds; the rights in immovable property and antenuptial contract. A discussion concerning the township establishment process, in which this legislation plays an important part, is contained in relationship to the Human Settlements Act, below. f) Urban Government Act, 1969 This Act provides the basis for the establishment of local authorities in Swaziland as a primary legal instrument defining the parameters under which city councils conduct their affairs. The act outlines the duties and powers of Councils. Specifically the duties and powers of Council include but are not limited to: Control, manage and administer the municipality; Page 8

11 Maintain and cleanse all public streets and open spaces vested in the Council or committed to its management; Abate all public nuisance; Safeguard public health, provide sanitary service for the removal of night soils, rubbish, carcasses of dead animals and all kinds of refuse; Establish or take over and maintain subject to the extent of its resources any public utility services which it is authorized to operate or maintain under any law and which is required for the welfare, comfort or convenience of the public; Develop, control and manage any land vested in or owned or leased by the Council designates towns, land, streets and public places; Audit of Council accounts. g) Land Speculation Control Act and the Land Speculation Control Regulations, 1972 The act provides for the control of speculative land transactions involving persons who are not citizens of Swaziland, and matters incidental thereto. The Regulations prescribe exemptions, form of consent, conduct of proceedings, and registration of landowners who are non-citizens of Swaziland through the Land Control Board and the form of appeal. h) Human Settlements Authority Act, 1988 The act established the Human Settlements Authority and its Objects and functions. It provides policy support to Government and the orderly development of human settlements by allowing for and outlining procedures for the establishment of Human Settlements. It also makes provision for the development human settlement development plans, the revocation or modification of development plans and finance mechanisms for the supply and maintenance of improved shelter and infrastructure. Any person who wishes to sub-divide property into five or more plots must follow the procedure for township establishment: Submit application Application sent to Water Services Corporation, Fire and Emergency Service, Swaziland Electricity Board, Post and Telecommunications Corporation and the Swaziland Environment Authority. Site inspection conducted by Human Settlements Authority. If the application is approved it then goes to the next stage, as described below. If it is refused, the developer can appeal to the Minister. Stage 2 includes the following steps: Survey township and prepare general plan Submit the plan to the Surveyor General Notify Human Settlements Authority Developer services the township Local authority inspects and approves Certificate of completion issued Human Settlement Authority gazettes the township Developer submits deeds and plans to the Registrar of Deeds Page 9

12 Registrar opens the township register. i) The Building and Housing Act, 1988 The act provides for the control and the safety of buildings and for incidental or connected matters. It deals with the classes of buildings, locations, design and construction and building regulations, including codes of practice. The procedure required by the Act is that all applicants must submit five copies of the following documents to the Local Authority, together with an application fee: Application form Working drawings Site plan showing access to the public road, existing buildings and plot boundaries A location map All sewerage, drainage and water plans. Plans are forwarded to several government departments and public utilities for comment. The Principal Secretary of the Ministry of Housing and Urban Development makes the final decision, except in Mbabane and Manzini, where it is made by the City Council. The regulations permit different standards are for different classes of building. Grade I regulations apply for conventional building. The Grade II Regulations, 1996, permit what might be described as Traditional construction, for example walls of clay or stabilized soil, ventilated improved pit latrines, and modest room sizes (10m², 7 m², Kitchen 2,3m²). j) National Housing Board Act, 1988 The act deals with the establishment of the Swaziland National Housing Board (SNHB) and includes provisions to purchase or by other means acquire and by sale, mortgage or lease, dispose of any movable or immovable property. It details the objects and functions of the Board which subject to the provisions of the Human Settlements Authority Act are to provide affordable housing generally in Swaziland and to take over such housing schemes as the government may determine. The SNHB make loans for acquisition of property and construction of housing or housing schemes. k) Swaziland Environment Authority Act, 1992 The act provides a broad mandate for environmental management by the Swaziland Environment Authority. Translating from these have been the environment audit, assessment and review regulations, the National Environment Policy, waste management guidelines and a National Environment Action Plan. l) Environmental Management Act, 2000 Sets out the framework for environment management and regulation. Supported by the Environmental Audit, Assessment and Review Regulations, m) The Constitution of The Kingdom of Swaziland 2005 Chapter 13 of the new constitution requires the establishment within five years of a single countrywide system of local government, to allow people at sub-national and local level to Page 10

13 progressively take control of their own affairs. Local governments shall be organized and administered through democratic means. The introduction of the new constitution coincides with the government s decentralization policy and implementation strategy. The new constitution specifically articulates its position on property and compensation in Section 19 (1) states that a person has the right to own property alone or in association with others. Furthermore the in 19 (2b) the constitution states that no one should be deprived of property ownership and in cases of public interest or safety owners shall be duly compensated. n) MHUD Resettlement Policy & Guidelines 1994 To permit the SUDP upgrading component to address the allocation of occupied and unoccupied serviced plots, Allocations Criteria and Procedures were issued in 1994 and a Resettlements Policy and Guidelines were formulated. A key issue in the housing sector is women s rights, especially in relation to their access to land. The policy provides guidelines for the implementation of resettlement programs. Rural Land Development Committees are proposed to ensure sustainable and equitable utilization of natural resources. The MHUD resettlement policy and guidelines must be followed to limit adverse effects of resettlement. The purpose of the guidelines is to lay a foundation through which resettlement can be carried out with regard to MHUD projects. o) Gender equity Since 2000, a series of significant legislation relating to gender equity in Swaziland has come into being including the new constitution. The situation may be summarized as follows: Under the UDP a 99-Year Lease was introduced which provided equal access to land regardless of gender. The Constitution of the Kingdom of Swaziland (2005), as well as protecting fundamental rights of all citizens (Section 14), specifically enshrines the rights of women (Section 28) to equal treatment, political, economic and social opportunities and commits the Government to enhancing their welfare, and provides for equal access to land irrespective of gender (Section 211). Furthermore according to Section 28 (3) women may not be compelled to undergo or uphold any custom to which she is in conscience opposed. The Gender Unit in the Ministry of Home Affairs has identified Constitutionalism and Law Reform as a priority and they have drafted a Program of Action with the assistance of UNDP. Currently the Constitution has two provisions explicitly stating the protection from gender discrimination and inequality before the law based on gender. Sections 14 and 28 enshrine gender equality reforms and redress previous legislation such as the Marriage Act of 1964, the Deeds Registry Act of 1938 and the Intestate Succession Act of 1953 and other inheritance laws. Funding Arrangements The resettlement measures will be financed by the MHUD on a project-by-project basis as has been done historically in all other Bank operations in Swaziland. Page 11

14 Comparison of GOS Legislative Framework with World Bank Policy on Involuntary Resettlement The Bank s safeguard policies require that potentially adverse environmental impacts and selected social impacts of Bank Group investment projects are identified, avoided, or minimised where feasible, and mitigated or monitored. Most safeguard policies provide that: (a) potentially adverse environmental impacts as well as specific social impacts should be identified and assessed early in the project cycle; (b) unavoidable adverse impacts should be minimised or mitigated to the extent feasible; and (c) timely information should be provided to the stakeholders, who should have the opportunity to comment on both the nature and significance of impacts and the proposed mitigation measures. Key objectives of the World Bank s policy on Involuntary Resettlement (OP 4.12) are: avoid or minimise involuntary resettlement where feasible, exploring all viable alternative project designs; assist displaced persons in improving their former living standards, income earning capacity, and production level, or at least in restoring them; encourage community participation in planning and implementing resettlement; and provide assistance to affected people regardless of the legality of land tenure. The policy covers not only physical relocation, but also any loss of land or other assets resulting in: relocation or loss of shelter; loss of assets or access to assets; and loss of income sources or means of livelihood whether or not the affected people must move to another location. The MHUD Resettlement Policy and Implementation Guidelines were drawn up in 1994 to meet the needs of the SUDP, jointly funded by IBRD and GOS. The policy and guidelines were specifically intended to meet the Bank s safeguard policy. The key objectives of the policy are virtually the same as the Bank s: involuntary resettlement should be avoided or minimised, exploring all designs and alternative mechanisms to permit residents to remain Where 10 or more households are affected, a resettlement plan is required to be approved, which should consider the needs of vulnerable groups. Affected persons shall have their previous standard of living restored, and shall be no worse off The costs of resettlement shall be borne neither by those displaced nor the host community. Those affected shall be compensated prior to moving for immovable assets, loss of income or livelihood, losses arising from disturbance, etc. Although the policy and guidelines focus on physical relocation, the rules apply to any loss of land or assets. Page 12

15 A comparison between the World Bank Safeguard Policy OP 4.12 on Involuntary Resettlement and existing national legislation in Swaziland is contained in Table 1. If it is determined that the Swaziland legislation does not correspond to World Bank policy, then World Bank policy will be followed. Page 13

16 Page 14 Table 1 Comparison of GoS and World Bank Resettlement Policies Entitlement Unit GoS Policy World Bank Policy Recommendation to Bridge Gaps A. Loss of Land Title Deed property owner SNL householder Non-title holder (informal settlers) Property Acquisition Act applies. - 2 months notice of acquisition - Purchase of property or portion for agreed value, including current market value, effect of project on other owned property, change of residence costs, loss of rent or profit. - In case of dispute, a Board of Assessment is set up to make ruling. - SNL is communal land held in trust by the King - In principle, SNL dwellers have the right to be given replacement -land by their Chief for any land taken - Any improvements are compensated in terms of the Property Acquisition Act. - MHUD Resettlement Policy & Guidelines apply. - Displaced persons shall have their previous standard of living restored, and shall be no worse off. B. Loss of Homes/Structures Families, households, - MHUD Resettlement Policy & structure owners Guidelines apply. - Compensation at market value for - Compensation at full replacement cost. - For agriculture land pre-project or predisplacement, whichever is higher, market value of land of equal productive potential within the same vicinity. - For urban land, pre-displacement market value of land of equal size and use, with similar facilities and sources within the same vicinity. - Replacement land of equivalent productive potential. - Resettlement assistance in lieu of compensation for land occupied (land, cash, other assets, employment) to at least restore their livelihoods and standards of living to pre-displacement levels. - Compensation at full replacement cost. - For houses and structures the market Essentially no gap as property owner has full range options including land for land, partial land and cash or full cash compensation If Swazi law and customs are given equivalent weight to formal written legislation and policy, both have the same objectives. Essentially no gap, since the policy and guidelines were drafted to meet World Bank policy. Removable items such as doors, windows and roof sheeting are not included in GOS valuation for

17 Entitlement Unit GoS Policy World Bank Policy Recommendation to Bridge Gaps shelters (houses and outbuildings), fencing, crops and trees - Single inconvenience payment where actual removal is involved owners and tenants cost of the materials and labour to build a replacement structure of a similar quality or better than the affected structure. compensation (although in practice they are). Guidelines will need to be revised to include these items. C. Loss of Economic Assets Families, households D. Loss of Income Affected person, families, households E. Loss of Community Resources Affected communities/ families - Not specifically covered in policy and guidelines but generally covered by objectives. - Resettlement Guidelines: Support During Transition Periods apply. - Commercial enterprises shall be compensated 6 months in advance and shall receive compensation for lost revenue for up to 6 months. - Compensation for farming operations is geared to reestablishment of fields. - Not specifically covered in policy and guidelines but generally covered by objectives. - Compensation at full replacement cost. - Measures to assist affected people in improving their former living standards, income earning capacity, and production levels, or at least restoring them. - Measures to assist impacted communities to re-establish or redevelop lost community resources. If required can be specifically included in guidelines. No gap same objective If required can be specifically included in guidelines. Page 15

18 4.0 Resettlement Policy Implementation Guidelines It is generally understood that the involuntary displacement of people may give rise to severe economic, social, and emotional distress on the part of those who are relocated. The Ministry of Housing and Urban Development s Resettlement Policy outlines the practices that must be followed to limit these adverse effects where resettlement is necessary. These implementation guidelines should be utilized in conjunction with this Policy. The purpose of these guidelines is to lay the foundation by which resettlement can be carried out with regard to SLGP-financed investments. Any involuntary resettlement including any land acquisition needs to be identified and considered at the earliest stages of sub-project identification and design, and should be addressed from the earliest stages of project preparation. It is assumed that no resettlement of households or businesses, per se, will occur under subprojects financed by the SLGP, and therefore identification and design of sub-projects will aim to avoid resettlement. However, it is possible that some small-scale land acquisition may be required. In the event that land acquisition and resettlement is necessary, these guidelines are to be followed. a) Resettlement Responsibilities Guideline 1-A: The Project Support Team (PST) will be responsible for ensuring that Resettlement Action Plans (RAP) are prepared for sub-projects involving land acquisition, impact on assets, and/or loss of income. The RAP will establish dispute resolutions to be used for each sub-project. The PST will ensure project affected persons are meaningfully consulted and are given an opportunity to participate in and benefit from project activities. b) Resettlement Principles In the resettlement of any person or business the following principles must be followed: i. Previous Standard of Living Guideline 2: Impacted persons shall have their previous standard of living restored in as short a period of time as possible using Guideline 5-A, B and C as a guide. The definition of previous standard of living shall be: The standard of physical, economic, and emotional security available to a person or business as manifested in the existing shelter, immovable assets, business environment, land infrastructure, and community situation present at a site prior to any impact. ii. Compensation Guideline 3: Impacted persons shall be compensated for their losses at replacement cost prior to the actual move. Page 16

19 Guideline 3-A: All laws and regulations regarding valuation and compensation shall be publicized and distributed amongst the people who are to be compensated. Guideline 3-B: The PST shall appoint a valuer from Government or the private sector who shall value all assets for compensation. Once the valuations are complete, and each resident has signed the valuation certificate with the valuer, the valuation certificates will be submitted to the PST for compensation. Guideline 3-C: Valuation and compensation shall be undertaken for all assets, including but not limited to: shelter, fencing, crops and trees, other structures, and private infrastructure supplied to a plot. Guideline 3-D: Compensation for immovable assets shall be on a financial basis. All compensation shall be on monetary terms. Compensation shall be made prior to the move to the resettlement site. If residents are not relocating to a resettlement site, compensation shall be monetary. Guideline 3-E: Any crops that are lost due to the timing of a project will be compensated financially. All fruit bearing trees will be compensated based on the age of the tree and potential profits from sale of the harvest. Ground crops will be compensated on a price per square meter of cultivated land. (Please refer to Annex A of MHUD s Resettlement Policy and Implementation Policy.) Guideline 3-F: Compensation for all losses of farm or grazing land shall be worked out on a case-by-case basis. It shall be the intention of the PST that, if feasible, subsistence farm and grazing land on Swazi Nation Land (SNL) should be replaced rather than compensated for financially. The PST, working with the relevant Inkhundla, shall facilitate discussion with the community and chief in this regard. Guideline 3-G: On SNL, and in some Crown Land area, residents may lose some traditional rights as a result of project implementation. These residents will be assisted, upon their request, to approach the Regional Administration Offices for reestablishment of their traditional homestead rights in another area within 6 months in accordance with Guidelines 5-A, B and C. After the six months the resident will forfeit his right to establish himself in another area. Guideline 3-H: Disagreements between either the valuer or a resident may be brought to the attention of the PST by either party. The PST shall listen to any disagreements, attempt to settle differences, and make recommendations regarding actions to be taken. If no resolution is reached during these discussions, a decision by the Minister will be made. If the grievance remains unsettled, a final decision can be rendered by using the Swaziland national court system as an unbiased third party. Guideline 3-I: In addition to compensation for immovable assets, a single inconvenience payment shall also be made to cover any possible costs which may be incurred due to possible increases in transportation costs, loss of social network, disruption of life, the bother of having to relocate, and possible mental anguish. The amount of any inconvenience payment shall be Page 17

20 calculated as a percentage of the amount compensated for immovable assets. This percentage shall be 10% of the total value of compensation paid to a particular individual. Guideline 3-J: For residents such as tenants, with no immovable assets, a single lump sum inconvenience payment shall be made to cover those items listed in Guideline 3-I above. The inconvenience payment will be on the basis of a flat rate calculated as 10% of the average compensation payment for immovable assets for all residents in the project areas. iii. Assistance with Relocation Guideline 4: When relocation is required, Government shall assist residents with relocation in the form of scheduled vehicles which will move residents and all their belongings to a resettlement site. All costs for moving residents shall be incurred by Government. iv. Support during Transition Periods when Relocation is Required Guideline 5-A: When possible, households should be compensated not later than 3 months before a scheduled move so as to avoid the costs of temporary housing and to give them the opportunity to begin construction of housing at the resettlement site. When this is not possible, temporary housing must be provided for a period of time during which residents will erect shelter. The PST, in conjunction with the impacted persons and traditional leaders, shall determine the appropriate transition period for which temporary housing may be made available. If a resident is aggrieved he/she shall lodge his complaint in writing to the PST who shall consider it and take a decision, If a person wishes to appeal, then such an appeal shall be lodged with the Minister. If the grievance remains unsettled, a final decision can be rendered by using the Swaziland national court system as an unbiased third party. All costs associated with lodging an appeal with the national court system shall be the responsibility of the PST. Guideline 5-B: Commercial enterprises shall receive compensation no later than 6 months prior to involuntary resettlement, in order that they can erect new business premises, re-establish a network of customers, and inform existing customers, suppliers, and business associates of the move. In addition, business owners shall be compensated when revenue is lost due to displacement up to a period of 6 months. The amount of compensation for lost revenue shall be determined on a case-by-case basis by the PST. If a resident is aggrieved he/she shall lodge complaint in writing to the Minister and the Minister will then appoint a Board of Assessment to look at such grievances. A legal person appointed by the Minister will chair the Board. Guideline 5-C: With regard to farming operations where land is replaced, compensation shall also be paid as transitional support geared to the reestablishment of fields. This compensation shall be financially assessed on the valuation of potential income with regard to the harvestable area of the original fields. Farmers will be compensated for two years during which they will have time to clear and prepare new replacement fields for tillage. Transitional support in the form of monetary compensation will be paid out on an annual basis for each of the two years of re-establishment. Kitchen gardens and other small supplementary farming operations will be compensated only for lost crops which are currently under cultivation, as small operations such as these should only take a single season to re-establish. If it is determined that kitchen gardens Page 18