Published online by Cambridge University Press: 28 July 2009
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.
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
4 Republic of Botswana, , Report of the Presidential Commission of Inquiry into Land Problems in Mogoditshane and other Peri-urban Villages, (Gaborone, 1992), otherwise referred to and discussed in this work as The Kgabo Land Commission Report.Google Scholar
5 Republic of Botswana, , “Land problems in Mogoditshane and other peri-urban villages”, Government Paper no. 1 of 1992, (Gaborone, 03, 1992).Google Scholar
9 Schapera, I., “The Tswana”, International African Institute monograph, London, 1970, 34–35.Google Scholar
14 The description of land tenure and land use zones which follows is derived from Schapera, , Handbook of Tswana Law, 196–211 and from the pertinent chapter of Native Land Tenure in Bechuanaland.Google Scholar
22 S. Roberts, “Arable land tenure and administrative change in Kgatleng”, in Werbner, R., Land Reform in the Making, 117–30.Google Scholar
24 “Land problems in Mogoditshane”, 6.
25 It was in much later works of scholars like Paul Bohannon, Max Gluckman and Antony Allott that appropriate sensitivity to the terminology of African land tenure systems was displayed and debated. For a summary of the main views and currents of thought on the topic see Bennett, T. W., “Terminology and land tenure in customary law: an exercise in linguistic theory”, 185, Acta Juridica, 173–87Google Scholar; MacCormack, G., “Problems in the description of African systems of land holding”, 21, 1983, Journal of Legal Pluralism, 1–14CrossRefGoogle Scholar, and Enchill, K. Bentsi, “Do African systems of land tenure require a special terminology?”, 9, 2, 1965 J.A.L. 114–39.Google Scholar
27 See “Land problems in Mogoditshane”, 2–3.
28 Hitchcock, R., “Tradition, social justice and land reform in Central Botswana”, in Werbner, R. (ed.), Land Reform in the Making, 22.Google Scholar
29 For these and other problems associated with the word “tribe” see Du Toit, B. M. (ed.), Ethnicity in Modern Africa, (West Viewe, 1978), ch. I, 1–16Google Scholar; Cohen, R. and Middleton, J. (eds.), From Tribe to Nation in Africa, (Pennsylvania, 1970), 1–34Google Scholar; and Davidson, B., “Pluralism in colonial African societies: Northern Rhodesia/Zambia”, in Kuper, L. and Smith, M. G. (eds.), Pluralism in Africa, (California, 1971), 214.Google Scholar
31 Onwuamaegbu, O., “Nigerian indigenous land law”, in Elias, T. O., Nwabara, S., and Akpamgbo, C. (eds.), African Indigenous Laws, (University of Nsukka, 1975), 348.Google Scholar
35 Olivier, N. J. J., Pienaar, G. J. and Walt, A. J. Van der, Law of Property, (Juta and Co., 1989), 290.Google Scholar
36 See Gluckman, M., The Ideas in Barotse Jurisprudence, (Manchester University Press, 1972), 85–86 for a similar conclusion in reference to Lozi land tenure.Google Scholar
37 Per Wessels, J., in Johannesburg Municipal Council v. Rand Township Registrar, 1910 T.S. 1314, at 1319.Google Scholar
38 See, for example, Visser, D. P., “The “Absoluteness” of ownership: the South African common law in perspective”, 1985 Acta Juridica, 39Google Scholar; Birks, P., “The Roman law concept of dominium and the idea of absolute ownership”, 1985, Acta Juridica, 1Google Scholar; and Harris, J. W., “Ownership of land in English law”, in MacCormick, N. and Birks, P., The Legal Mind, Essays for Tony Honoré, (Oxford, 1986), 143.Google Scholar
39 Birks, , “The Roman law concept of dominium and the idea of absolute ownership”, 31.Google Scholar
40 Honoré, A. M., “Ownership”, in Guest, A. E. (ed.), Oxford Essays in Jurisprudence, (Oxford, 1961), ch. V, 112–13.Google Scholar
43 Birks, , “The Roman law concept of dominium and the idea of absolute ownership”, 1 and 25–31.Google Scholar
44 Allott, A. N., “Family property in West Africa, its juristic basis, control and enjoyment”, in Anderson, J. D. (ed.) Family Law in Asia and Africa, (London, 1968), 123Google Scholar. In his earlier reflections on the subject, Professor Allott was inclined to attempt an all-embracing definition of “absolute ownership”. This led him into a needless exchange with Rowton Simpson. See Allott, A. N., “Towards a definition of ‘absolute ownership’, 1961, J.A.L. 99–100Google Scholar and Simpson, R., “Towards a definition of ‘absolute ownership’ II”, 1961, J.A.L. 145–50.Google Scholar
45 Sir Seretse Khama, National Assembly, Official Report, (Hansard 23), 2nd Session, 1st Meeting, 8–17 01 1968, 14.Google Scholar
46 Some of these concerns are evident in the speeches made during the second reading of the Tribal Land Bill. See National Assembly, Official Report, (Hansard 25), 2nd Session, 3rd Meeting, 6–9 08 1968, 68–99.Google Scholar
47 Ghai, Y. P. and McAuslan, J. P. W. P., Public Law and Political Change in Kenya, (Nairobi, 1970), 25.Google Scholar
48 See, for example, Ng'ong'ola, C., “The design and implementation of customary land reforms in Central Malawi”, 1982, J.A.L. 115.Google Scholar
49 These were the Bamangwato, Batawana, Bakwena, Bangwaketse, Bakgatla, Bamalete, Barolong and Batlokwa. The ninth Board was established to operate in the Tati tribal area. Schapera, Handbook of Tswana Law, 2 describes the original tribal reserves and the estimated sizes of the various territories.
50 The Tribal Land (Amendment) Act, no. 21 of 1976 designated new boards for Chobe, Kgalagadi and Ghanzi areas. See the National Assembly, Official Report, (Hansard 56), 3rd Meeting, 2nd Session, 19 07, 1976, 5.Google Scholar
51 See, for example, Tribal Land (Amendment) Acts nos. 4 of 1979, 26 of 1982; 3 of 1983; 3 and 24 of 1984; 16 of 1985; and 15 of 1987.
52 Establishment of Subordinate Land Boards Order, SI no. 47 of 1973.
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.
60 See, for example, Republic of Botswana, Report of the Presidential Commission on Local Government Structure in Botswana (Gaborone, 1979), ch. 5, 41–47Google Scholar, and Report of the Review of the Tribal Land Act, Land Policies and Related Issues, (Gaborone, 1989), ch. 3, 39–54Google Scholar; Machacha, B. N., Land Boards as Land Management Institutions in Botswana, M.Sc. Thesis, University of Wisconsin, Madison, 1981, 365Google Scholar; and Mathuba, B., Customary and Modern Land Tenure Systems in Botswana, M.Sc. Thesis, Universiy of Wisconsin, Madison, 1982, ch. 3.Google Scholar
61 See Establishment of Subordinate Land Boards (Amendment) Order, SI no. 36 of 1986; and Tribal Land (Amendment of Schedule) Order, SI no. 35 of 1986. These instruments belatedly carried through a recommendation of an Interministerial Committee on Land Board Operations of 1978 which was endorsed in the Report of the Presidential Commission on Local Government Structure in Botswana, 1979, at 43. para. 5.09.Google Scholar
62 Reg. 3(1) of Tribal Land Regulations.
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.
78 Reg. 15(1) of Tribal Land Regulations.
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.
84 Reg. 12 of Tribal Land Regulations.
86 S. 24(1) of the Tribal Land Act.
87 Republic of Botswana, Report of the Presidential Commission on Land Tenure, (Gaborone, 1983), 5, para. 2.04.Google Scholar
88 Reg. 18(1) of Tribal Land Regulations.
89 The Land Control Act, cap. 32:11, Laws of Botswana.
91 Republic of Botswana, “National policy on tribal grazing land”, Government Paper no. 2 of 1975, Gaborone.
92 See, for example, Hitchcock, “Tradition, social justice and land reform”, 7–28; and Molomo, M., “Land reform and the tragedy of the commons in Botswana”, Pula: Botswana Journal of African Studies, vol. 6, no. 2, 67–73.Google Scholar
93 S. 24(2).
94 Reg. 20(2) of Tribal Land Regulations.
95 Ss. 24(4), 24(5) and 24(6), and Reg. 21 of Tribal Land Regulations.
96 Regs. 20(3) and 20(4) of Tribal Land Regulations.
97 S. 26(1).
98 S. 26(2).
99 S. 26(4).
100 S. 17 of the Deeds Registry Act, cap. 33:02, Laws of Botswana.
101 Report of the Presidential Commission on Land Tenure, 1983, 7–9Google Scholar, and Frimpong, “The Administration of Tribal Lands in Botswana”, 70.
102 The newspaper Mmegi, (The Reporter), vol. 7, no. 31, 24–3008, 1990Google Scholar made reference to some of the litigation in an article entitled “Land speculators could be in trouble".
103 Kweneng Land Board v. Kabelo Matlho and Others, High Court of Botswana, Misc. Applications no. 137 of 1990, unpublishedGoogle Scholar.
105 P. 2 of transcript.
106 Para. 5.8 of Attorney General's heads of argument, and p. 4 of transcript of judgment.
107 P. 6 of transcript.
108 Ss. 13(l)(b) and 15.
110 Pp. 42–43 of the Report. This aspect of the Report is controversial because the former Vice-President and former Minister for Agriculture who were implicated thereby have reportedly filed papers in the High Court challenging it.
115 The Kgabo Land Commission Report, xv, para. 9.
119 “Land problems in Mogoditshane”, 27.
121 “Land problems in Mogoditshane”, 28.
127 “Land problems in Mogoditshane”, 11.
130 S. 20(1) discussed above in reference to grants of customary land rights.
132 S. 8(1) of the Constitution of Botswana, and The Kgabo Land Commission Report, 85, para. 2.191Google Scholar.
133 S. 33.
136 “Land Problems in Mogoditshane”, 12–13.
138 Ng'ong'ola, C.. “Compulsory acquisition of private land in Botswana: the Bonnington Farm case”, vol. xxii, 1989, Comparative and International Law Journal of Southern Africa, 315–17Google Scholar.
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.
143 See, for example, Ng'ong'ola, C., “Rural development and the reorganization of customary land in Malawi, some lessons from the Lilongwe Land Development Programme”, 1986, Malawi Journal of Social Science, 39–56Google Scholar.