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Land Problems in Some Peri-Urban Villages in Botswana and Problems of Conception, Description and Transformation of “Tribal” Land Tenure

Published online by Cambridge University Press:  28 July 2009

Clement Ng'ong'ola
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In Botswana, as in several other African countries with a similar historical experience, a dual or plural land tenure system was carried over from the colonial era. The bulk of the land falls within the category of “tribal land”. It is predominantly held and occupied by indigenous peoples under customary notions of land tenure. The State also holds as “State land” a fairly significant proportion which fell under the category of “Crown lands” during the colonial era. A tiny proportion now falls within the category of “freehold land”. This is predominantly held and occupied in conformity with common law notions and conceptions imported into the country with colonial rule. To some extent both State land and freehold land are held under or governed by “received law”, in contradistinction to tribal land which is largely held under customary law.

In 1968, barely two years after independence, the Botswana parliament enacted legislation which attempted to reform customary land tenure by replacing existing customary or tribal institutions of land control and administration with statutory land boards. These started operating in 1970, and it soon became apparent from early assessments that even this limited and cautious programme of reform would not escape some of the problems associated with land transformation exercises elsewhere in Africa.

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Articles
Information
Journal of African Law , Volume 36 , Issue 2 , Autumn 1992 , pp. 140 - 167
Copyright
Copyright © School of Oriental and African Studies 1992

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References

1 Machacha, B., “Botswana's land tenure: institutional reform and policy formulation”, in Arntzen, Ngcongco and Turner, (eds.), Land Policy and Agriculture in Eastern and Southern Africa, (Tokyo, 1986), 39Google Scholar gives the following breakdown of the three land categories at independence: tribal land, 48 per cent; State land, 47 per cent; and freehold land, 6 per cent. The amount of State land was subsequently reduced to 23 per cent when portions of it were converted into tribal land to relieve congestion in some tribal areas.

2 Tribal Land Act no. 54 of 1968, now cap. 32:02, Laws of Botswana.

3 Werbner, R. (ed.), Land Reform in the Making, (Rex Collins, 1982), contains some fine essays providing an early assessment of Botswana's land reform exercise.Google Scholar

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53 S. 3(6) authorizes the Minister to change the composition of any land board by means of an Order published in the Government Gazette.

54 See the first schedule to Act no. 54 of 1968.

55 Reg. 3 of Tribal Land Regulations, SI no. 7 of 1970.

56 S. 8 of Act no. 54 of 1968.

57 See the first schedule to the current Tribal Land Act, cap. 32:02, Laws of Botswana. Several other changes which need not be detailed here were effected in the interim by Tribal Land (Amendment of Schedule) Orders no. 102 of 1981 and no. 91 of 1984, and by the Tribal Land (Amendment) Regulations, SI no. 91 of 1984.

58 Reg. 4 of SI no. 47 of 1973.

59 Regs. 8 and 9 of the Tribal Land (Subordinate Land Boards) Regulations.

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63 This is notwithstanding the recommendation of the Report on the Review of the Tribal Land Act, 1989, 53Google Scholar, to increase the number of “democratically” elected tribal representatives to seven, out of a proposed total board membership of 2. The review of the report of the Kgabo Land Commission below will suggest that such a recommendation will probably not be implemented.

64 It may be of interest to note that no similar power was bestowed upon the subordinate boards when they were constituted to take over from subordinate land authorities.

65 See the review of the case of Kweneng Land Board v. Kabelo Matlho and Others below.

66 Ss. 17 and 18.

67 Reg. 5(1) of the Establishment of Subordinate Land Boards Order, 1973.

68 Regs. 5(2), 5(3) and 5(4).

69 The reports and works cited in n. 60 above provide sufficient information on this issue. Frimpong, K., “The Administration of Tribal Lands in Botswana”, 1986, J.A.L., 51 is also pertinent.Google Scholar

70 Regs. 6–8 of the Tribal Land Regulations, Part III.

71 Reg. 6(1).

72 Reg. 11. S. 16 of the Tribal Land Act underscores the importance of the certificate by stipulating that the land granted may not be occupied until a certificate has been issued. This would appear to an impractical requirement, especially where the land boards are not noted for efficiency in the execution of their duties.

73 Reg. 8(l)(a).

74 S. 2 of the Tribal Land Act.

75 S. 10(1) above.

76 Regs. 15–16 of the Tribal Land Regulations.

77 Schapera, , Handbook of Tswana Law, 199 and 205–206Google Scholar; and Native Land Tenure in Bechuanaland, 107 and 176–83.Google Scholar

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79 Schapera, , Native Land Tenure in Beckuanaland, 177–78Google Scholar. Schapera reported that Chief Seepapitso of the Ngwaketse (1910–16) in fact passed a law to this effect which was still in force at the time he was writing.

80 Reg. 16(7) of the Tribal Land (Subordinate Boards) Regulations. It is somewhat surprising that this "finality" of the Minister's decision is declared in these regulations and not in Tribal Land Boards Regulations or in the principal Act.

81 Reg. 16(1) of Tribal Land (Subordinate Boards) Regulations, and Reg. 16(1) of the Tribal Land Regulations.

82 S. 14 of the Tribal Land Act.

83 Regs. 16(1) and 16(2) of Tribal Land (Subordinate Boards) Regulations.

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97 S. 26(1).

98 S. 26(2).

99 S. 26(4).

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121 “Land problems in Mogoditshane”, 28.

122 Ibid.

123 The Kgabo Land Commission Report, 41, para. 2.94.Google Scholar

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128 Ibid.

129 Ibid., at 24.

130 S. 20(1) discussed above in reference to grants of customary land rights.

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133 S. 33.

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135 Ibid., at 89, para. 2.205.

136 “Land Problems in Mogoditshane”, 12–13.

137 Ibid., at 26.

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139 Ibid., at 305.

140 Ibid., at 308–313.

141 Land problems in Mogoditshane”, 16 –17.

142 Report of the Presidential Commission on Local Government Structure in Botswana, 1979, 47, para. 5.26Google Scholar.

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