LAND RIGHTS
Land is owned by the State in Botswana and every citizen has an equal right to be allocated land, protected by the Constitution. Violations of this right particularly affect women and children, the poor and ethnic minorities. Other groups in Botswana facing particular difficulties related to land include those living close to wildlife areas. Raising awareness of land rights issues, both within the community and relevant government institutions, can address many of the violations of land rights. However, there is also a need for the government to address a number of specific problems through legislative change and implementation of policies.
DITSHWANELO has a Land Rights Programme which is the key focus of our Outreach Programme in Kasane. This Programme has identified a wide range of issues and been working on solutions to these issues since 2000.
This section includes further information about:
Land rights & procedures in Botswana
All but 7% of the land in Botswana is owned by the State, in the form of Land Boards. Every citizen has a right to be allocated land and the Constitution of Botswana requires that all citizens are treated equally and protects all citizens from discrimination based on race, tribe, political opinions, colour or religious beliefs, including in the process of allocating land.
Land is allocated by the 12 Land Boards in the country. Once allocated, the lease on the land can be sold through the property market based on the value of the improvements to the land, rather than exchanging ownership of the land itself. In the limited areas of private ownership, including Phakalane, farms in the Ghanzi District and the Tuli Block, the land itself can be sold on the property market.
When land is allocated by a Land Board, the legal proof that the citizen(s) has the right to live, work or farm on a certain plot of land is provided by a Certificate of Customary Land Grant. This Certificate provides permanent rights to the plot of land. However, the land itself is still owned by the local Land Board and there may be occasions in which the residents must be asked to move, in which case fair compensation should be paid immediately.
In addition to the formal land allocation process, many citizens live, work or farm on a certain plot of land because it has been in their family for years or as a result of their community’s informal process of allocating land, such as through meetings in which agreements are made about which family will live on each plot of land. Such informal land occupation is recognised in Botswana and compensation will still be paid if the residents are required to move. However, this informal arrangement does not provide permanent rights. Citizens are encouraged to apply for formal land registration to protect their rights.
Land Boards were introduced to Botswana in 1975, largely / in most areas replacing the traditional role of Chiefs in allocating land. As a result, Chiefs became less clear about their new role in land allocation. Misallocations, due to a variety of reasons, also caused frustration and poverty. As a result, the position of Land Overseers was introduced with the task of liaising between the Land Boards and the Chiefs.
Violations of land rights
The following points summarise the major issues relating to land rights in Botswana which have been identified through DITSHWANELO’s Land Rights Programme in Kasane.
- Problems relating to family members’ ‘land grabbing’ from those who should rightfully inherit the land, especially widows and orphans. As few Batswana make a Will and women and children have a weak position in traditional society, other family members such as uncles and in-laws, frequently take the land of the deceased person and refuse to give widows and orphans their rightful inheritance.
- There are often problems relating to the property rights of children born from co-habitation relationships. Although the 2001 Census found that over 86% of couples living together in Botswana were not married, various laws still discriminate between those born in and out of wedlock. Under Customary law, children born out of wedlock belong to their mother’s family and the father has no duty of support, other than compensation to the woman’s father for damaging the family’s reputation. The father also has no rights, such as visitation. This situation reduces the likelihood that he would provide property.
- Minority members of society are sometimes treated unfairly by land
administration institutions and there are cases of non-adherence to the Tribal Land Act by some Land Boards. Although the law does not allow discrimination based on tribe or any other basis, in practice the system is discriminatory due to the fact that of the 12 Land Boards, eight are based on the tribal territories of the eight Tswana tribes, as specified in the Chieftainship Act. Minorities residing in these Land Board areas often report that their applications are not accepted or considered, or that the application processes is much slower than those of the Tswana tribe of the territory. Non-Tswana may be members of the Land Board, but there is discrimination because they can be forced to resign by the Minister, while Tswana are immune to this process because they can be ex-officio members.
- There are examples of misallocation of land due to unlawful behaviour. During 2004 a Commission of Inquiry into the Allocation of Land in Gaborone found examples of such irregularities and the Directorate of Corruption and Economic Crime (DCEC) undertook an investigation. There is still a need to conduct similar inquiries throughout the country, particularly in areas such as Gantsi, Kasane, Francistown and Ngamiland.
- Environmental Impact Assessments are still not being undertaken as part of the land allocation process. For example, in one case investigated by the Commission of Inquiry into the Allocation of Land in Gaborone, the Town and Regional Planning Board objected to the building of a filling station because the ‘plot fell within a flood plain and was unsuitable for the development of a filling station’, and the Ministry of Agriculture objected to the subdivision of the forestry area, where the filling station was to be built. Nevertheless, the filling station was built and remains an environmental risk.
- There has been a rise in poverty among rural communities as a result of the conflicting needs of subsistence agriculture and wildlife. This can happen, for example, due to the creation of wildlife conservation areas in grazing and crop areas, or as a results of direct damage caused by elephants and other wild animals, ranging from crop destruction to death.
- There have been some serious delays by Land Boards in responding to public needs. Land use plans may take many years to complete (one known to DITSHWANELO has taken more than 23 years), and disputes frequently take months to be dealt with.
- There are similar delays by Land Tribunal to hear appeals, as there are only two Tribunals for the whole country.
- The degree of government centralisation means that local authorities have limited ability to make local decisions, which causes delays and lack of local understanding when decisions are made. For example, there are a number of key policies which have been in a ‘draft’ state for over two years, including the Community Based Natural Resources Management (CBNRM) Policy, the Forestry Policy and the Land Policy. These policies form the backbone of land and related resources administration and management, especially in rural Botswana, and the delay in finalising and implementing the policies is perpetuating some of the other difficulties listed here.
- There have been cases of illegal land dealings and ‘land grabbing’ by economically and politically powerful individuals. It is becoming increasingly difficult for Batswana to receive a second allocation of land from a Land Board. As land is exchanged based on the value added to the land, such as the value of buildings, unscrupulous individuals are buying land from villagers for a small amount based on the poor quality of the hut(s) on the land, and then able to develop the land for business or tourism purposes. Even where the full value of the building is paid to the villager (which is not always the case, many are cheated even of this), it is insufficient to compensate for the fact that s/he is unlikely to receive any further land allocation and will be forced into greater poverty.
- There is a need to improve the Land Overseers’ services and ability to prevent corruption. The position of Land Overseers was introduced with the task of liaising between the Land Boards and the Chiefs, who were responsible for allocating land prior to the establishment of the Land Boards in 1975. Land Overseers are voluntary and the majority of Land Overseers do not have specific knowledge about land issues, they are more like general facilitators of the process. Many therefore need considerable training to improve their services and ability to prevent corruption.
- The lack of clarity regarding the boundaries of certain districts causes difficulties in land administration and in other areas there is a need to clarify the borders between State land and Tribal land.
- Unprotected country borders are causing problems. For example, Botswana cattle are free to wander into Namibia. Because Namibia has foot-and-mouth disease, Botswana then requires the cattle to be destroyed.
Changes required to protect land rights
DITSHWANELO is working to raise awareness of land rights issues as a way to help individuals and communities protect their land rights, such as encouraging individuals to prepare a Will and raising awareness of the value of their land.
In addition to awareness raising, we call on the government to implement the following changes.
- Finalise and implement the three policies which are still in ‘draft’, namely the Community Based Natural Resources Management (CBNRM) Policy, the Forestry Policy and the Land Policy, as these form the backbone of land and related resources administration and management, especially in rural Botswana. Implementation of these policies will include issues like provision for grazing areas which will reduce the likelihood of cattle straying over the border into foot-and-mouth areas.
- Similarly, finalise and implement the Environmental Impact Assessment (EIA) Bill and ensure it is enacted such that all land applications are appropriately assessed.
- Identify and implement a solution to the problem of the conflict between wildlife and villagers, especially the damage caused by elephants.
- Investigate allegations of discriminatory or unfair treatment of minority members of society by some land administration institutions and non-adherence to the Tribal Land Act by some Land Boards and ensure that the non-discriminatory laws are being upheld.
- Recognising the very high occurrence of cohabitation in Botswana, review the legislation which discriminates between children born in and out of wedlock and provide the same property and other rights to all children.
- Address the lack of clarity regarding the boundaries of certain districts causing difficulties in land administration, and a need to clarify borders between State land and Tribal land in some areas.
DITSHWANELO’s work for land rights
The majority of DITSHWANELO’s work to protect land rights is undertaken by our Outreach office in Kasane, northern Botswana. As our Outreach Programme details, this office was set up at the request of the Basarwa / San community and land rights were identified as the key requirement of this community.
Some of the land rights issues faced in this region of Botswana are particular to its location close to extensive wildlife and tourism areas and on the border with three other countries. However, many of the land rights issues are common across Botswana and the Land Rights Project based in Kasane is documenting the issues and developing a land rights policy for DITSHWANELO.
The Land Rights Project is specifically undertaking the following activities.
- Raising communities’ knowledge of their land rights and responsibilities, and other human rights issues, by distributing copies of “Know Your Land Rights” and holding community discussions and workshops across the region and as far afield as Gantsi in western Botswana.
- Building the capacity of the local communities, particularly the Basarwa / San people, to enable them to access and protect their land rights – also building capacity to address other human rights issues. This work includes some long-term community projects, working with leaders to build their understanding and confidence regarding the laws, planning and negotiation skills, etc.
- Strengthening the capacity of institutions and structures dealing with land issues, enabling efficient delivery, respect and upholding of land rights. This work includes:
- running seminars with new Land Overseers to build their understanding of land issues;
- raising community issues with land authorities and lobbying for solutions to be implemented; and
- facilitating and being involved in other organisations’ workshops and taking advantage of other opportunities to raise understanding of community land issues among Land Boards and other relevant authorities. These opportunities include giving presentations, such as at the bi-annual conference of the Botswana Association of Tribal Land Administrators on “Effective Land Management for prosperity”, and working with the Self-help Housing Agency of Council which is responsible for orphans.
- Giving presentations on land, and other human rights, issues at a wide range of community, business and other events, ranging from invitations by employers to speak to their staff; to having a stand at events such as the Vision 2016 Awareness Month.
- Monitoring the implementation of land policies by state bodies and authorities, such as Land Boards.
- Undertake research into land rights issues, to develop an inventory of land rights issues and violations, leading ultimately to identifying a Land Rights Framework for DITSHWANELO.
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