Botswana - Context and Land Governance

^{Thamaga village, by David Cohen, CC BY-NC-ND 2.0}

Colonial and post-colonial land policies have impacted on citizens’ access to land and natural resources in different ways. The discovery of diamonds and the development of a lucrative mining sector has accelerated the pace of urbanisation and made access to serviced land in the urban centres a key policy issue. In game-rich rural areas many local people have been displaced to make way for tourism. 

Much of the land comprising present day Botswana was first home to Basarwa¹ hunter gatherers whose presence long predated those of Bantu speaking peoples. In the precolonial period Tswana polities known as morafe were presided over by hereditary dikgosi. From the mid 1880’s the colonial ‘scramble for Africa’ accelerated as different colonial powers annexed parts of the continent and European missionaries extended their influence. After declaring the Bechuanaland Protectorate² in 1885, British administrators set out to align the morafe with newly demarcated tribal reserves and transform the dikgosi into ‘chiefs’, mirroring imperial policies of indirect rule practised elsewhere in Africa. Parts of the Protectorate in the north east of the territory were ceded to private companies speculating in land and minerals, while South African farmers gained access to land in the Ghanzi and Tuli blocks.

The country experienced a spike in inequality in the 1930’s. This was linked to opportunities for accumulation of land and livestock linked to the growth of the cattle export sector.  A cattle owning elite was consolidated in which just 5% of the population owned more than 5000 cattle each³. By independence in 1966, 75% of the national herd was owned by just 15% of the population.

The imposition of taxes by colonial powers forced many Batswana to find work in neighbouring South Africa. By 1943 28% of all adult men were migrants, the vast majority of whom worked in South African mines. This reached a peak in the late 1970’s when some 40,000 Batswana were employed in the mining sector. Many migrant workers used cash earned from wages to purchase cattle back home⁴ – a factor which contributed to increased contestation over access to grazing and community rights on communal land. 

Diamonds were discovered in Botswana shortly after independence and by the mid-1970s had replaced cattle as the country’s most important source of revenue⁵. Botswana’s economy experienced rapid growth from the 1980’s, linked to diamond and copper-nickel mining. At the same time mining employment in South Africa declined significantly. Economic growth provided the stimulus for rapid urbanisation. This placed pressure on land administration systems, which in turn impacted on equitable access to land in urban and peri-urban areas. While Botswana is reported to have the wealthiest mining economy in the world and is now classed as a middle-income country, the nation remains characterised by both high gross and net income inequality which has continued to rise since 1985⁶.

Land legislation and regulations

All citizens in Botswana have a right to land, although this right is not constitutionally guaranteed. At independence 49% of the country was designated as tribal land⁷, while 4% was freehold and the balance was state land⁸. The State Land Act of 1966 transferred what had previously been known as Crown Land to the State⁹. Subsequent release of state land enlarged the area designated as tribal land which amounted to over 71% of the total land area by 2013.

Historically, hereditary dikgosi allocated land in terms of customary law. Significant changes in land administration were introduced with the Tribal Land Act of 1968. This led to the establishment of Land Boards in the 1970’s to oversee land allocation. As post-independence land administration systems developed, the digkosi were progressively “stripped of much of the formal authority” which they enjoyed under the Protectorate¹⁰. A House of Chiefs was established as part of the new governance structures, but this was primarily an advisory body. The dikgosi were incrementally recast as paid functionaries of the State, while also benefiting from preferential access to land.

There are contrasting perspectives on the Land Boards. These are often presented as model institutions¹¹. However, there is also significant evidence that the Boards quickly “became a vehicle for further accumulation by a landed elite”¹².

State land is vested in the President who has subsequently delegated his powers to the Minister of Lands. Citizens and non-citizens access state land through leasehold agreements – 99-year leases for citizens and 50-year leases for non-citizens.

As Land Boards faced capacity constraints, sub-Land Boards were established with responsibilities for land administration in smaller designated areas within each district. These put in place application procedures to access tribal land for residential, agricultural, commercial, civic and industrial purposes.

Applicants seeking residential and agricultural land in tribal land areas complete customary application forms. A common-law application process caters for those seeking land for business premises or civic amenities. In the case of customary applications conditions require that the land should be developed within five years. Common law applications require that the land must be developed within two years. For commercial sites, applicants pay a lease rental which is calculated according to the size of the plot. 

Land use planning was enabled by the promulgation of the Town and Country Planning Act in 1974 – a law modelled on outmoded British planning legislation from the 1940s. The Act had the effect of centralising planning authority and giving the Minister of Lands the final power over key planning decisions.

A White Paper on Tribal Land drafted in 1992 proposed far reaching changes to the TLA. These included recommendations that women and men should have equal rights to be allocated land. To give effect to this a subsequent amendment to the TLA substituted the word ‘citizen’ for ‘tribesman’ in the original legislation. Significantly the amendment also meant that individual citizens could now apply for land anywhere in the country – and not just in the District where they resided. This created opportunities for politically connected and wealthy individuals to expand their access to land, including for speculation¹³.

These changes to the TLA resulted in increasing numbers of land disputes. In the mid 1990’s the Botswana government established Land Tribunals to adjudicate such disputes. At first dispute resolution services provided by the Tribunals were free. It has been argued that a subsequent shift to fee-based services gave wealthier land users some advantage to have disputes settled in their favour. However, the fees levied by the Tribunal are nominal and remain much more affordable than having a land dispute decided by the courts.

Mounting concerns with the operations of some of the Land Boards prompted a National Land Policy Review in 2000. Critics argued that Land Board decision making had increasingly been characterised as “arbitrary… and to diverge from expectations of public order that is regular and predictable”¹⁴. This prompted speculation that influential individuals with vested interests and large land holdings were exercising undue influence over Land Board decisions. Institutions such as the World Bank also highlighted restrictions on access to land which created uncertainties for investors. The policy review highlighted the need for improved land administration systems.

In 2008 the Botswana government entered into a multiyear partnership with the Swedish government to establish Land Administration Procedures, Capacity and Systems (LAPCAS) to map and regularise all tribal land allocations, based on a numeric cadastre system, requiring precise survey of properties¹⁵. 

In 2010, the government moved to reintegrate the dikgosi, or their local representatives as part of the operations of the Land Boards. This was consistent with renewed emphasis by governments elsewhere in the southern African region on ‘re-legitimating’ the role of traditional authorities, which has been described as a process of ‘re-traditionalisation’¹⁶.  However this process is widely regarded as having reconstituted traditional leadership in ways that would not have been recognised in the past¹⁷. 

By 2013, the scope of the LAPCAS was extended to register all land holdings in the country. However, initial results have been described as “disappointing” and expensive. Although US$ 24.5 million were

spent on the programme, only 35,255 (8 percent) out of a targeted 464,634 plots, had been adjudicated, while 209,449 (45 percent) had been surveyed by the first quarter of 2015/16¹⁸.

A new Tribal Land Act in 2018 requires planning and survey of land prior to any land allocation, as envisaged by the LAPCAS. The Act also recognises practices long approved by the Land Boards which make it possible for improvements on tribal land to be transacted on the market as opposed to the land itself, albeit with conditions.

Land tenure classifications

           

Land use trends

In 1975, the Tribal Grazing Land Policy (TGLP) was passed. This sought to accommodate “more modern practices of land use, such as more exclusive allocation and utilisation of tribal grazing ranges”¹⁹. The new direction of rangeland management policy was externally influenced by Hardin’s article on the so-called ‘Tragedy of the Commons’. While Hardin would later say that his focus was on the tragedy of the unmanaged commons, this widely cited article fuelled privatisation and titling narratives which were taken up by global institutions. 

The TGLP enabled significant privatisation of the commons. A substantial portion of the communal grazing land was designated for commercial ranches and put out to tender. Grazing was allocated to individuals or syndicates representing large cattle owners, who obtained 25-year leases. Concerns were raised about the fairness and transparency of the tender process.  A subsequent Commission of Enquiry found evidence of tenders being awarded to individuals fronting for large cattle owners, including certain dikgosi – thereby enlarging their control over grazing land²⁰. In a water scarce and drought prone country, access to water is the key determinant enabling land use for grazing. The development of water syndicates to finance the drilling of boreholes and secure exclusive rights to groundwater resources has been an important driver of inequality in Botswana²¹.

The enclosure of rangeland also contributed to the displacement of vulnerable groupings with ancestral rights to much of this land. In the process an estimated 28,000 - 30,000 Basarwa lost unrecorded rights in land²². 

The 1991 National Policy on Agricultural Development (NPAD) reasserted that growth in livestock numbers on common grazing had resulted in rangeland degradation. NPAD enabled the further issue of fenced grazing land with water points to large livestock owners, who secured exclusive access to ranches and TGLP farms. These large producers were doubly advantaged in that they still retained their customary grazing rights on the commons. When common grazing deteriorated large livestock holders could move their stock to land where they had exclusive rights. This left small-scale graziers on the commons with their grazing depleted by large stock owners, which rendered them particularly vulnerable to livestock losses in times of drought.

Overall, the combined impact of the TGLP and NPAD accelerated “the de facto privatisation of land”²³.   

The establishment of conservation areas has also impacted on access to land and household livelihoods. In total over 43% of land in Botswana is designated for conservation purposes²⁴. Many of the poorest communities live adjacent to conservation areas. Initiatives to promote community based natural resource management (CBNRM) were launched in the 1990’s in a bid to reduce human wildlife conflict and ensure that a portion of the revenues from tourism, hunting and conservation benefitted surrounding communities²⁵.

^{Cattle post, photo by Michael Jefferies, CC BY-NC 2.0}

Land investments and acquisitions

Botswana has deep anomalies rooted in early colonial history which persist to this day. These date back to 1868 when imperial land grabs were accelerating, and European prospectors and hunters were drawn to the Tati goldfields in what today is north eastern Botswana. Land and mineral speculators negotiated concessions with Lobengula, then Ndebele leader who ceded control over some 5358 sq. km of land situated on the border between the Bechuanaland Protectorate and Matabeleland. However, there was little gold to be found and after a few years these concessions changed hands, before falling under the control of the Tati Concessions Ltd. In terms of Proclamation No 2 of 1911, the colonial administration recognised the Company to be "in full, free and undisturbed possession as owners of all the land… subject however to various conditions affecting the Native Reserve”²⁶. This gave rise to what has been termed as the development of “a colony within a protectorate”²⁷. Local people were forced to pay rent to the company and become tenants on land which they had occupied long before the arrival of the concession seekers. The Tati Concessions company then set out to encourage white immigration, marking out farms for allocation to settlers. By 1942 the company was receiving rent from 997 tenants²⁸.

More recently the Tati company came to be owned by a South African multimillionaire. Shortly after independence, the new Botswana government passed the controversial Tati Concessions Land Act of 1970. This Act confirmed the company’s ownership of the land, stating that “the right to all minerals and precious stones under the land in the Tati District is reserved to the Tati Concessions, Limited, and also the right of prospecting for and working the same…” This exempted the company from Section 3 of the Mines and Minerals Act of 1999 which states that all minerals within Botswana are the property of the Republic of Botswana.

A 2018 investigation²⁹ found that the Tati company was registered in the UK, while its holding company was registered in Panama. It has been claimed that the company owns more than 40% of the land in North Eastern Botswana. According to the investigation, the company’s 2016 accounts list a property portfolio including 12 farms and 11 lots valued at about 140-million pula (105 million Euro).

Women’s land rights

Historically land rights were mostly vested in men (as women did have some rights e.g. to inherit their mothers’ fields). Original drafts of the Tribal Land Act referred to the land rights of ‘tribesmen’. The insecure land rights of rising numbers of female-headed households prompted campaigns for recognition of women’s land rights³⁰. In 1992, the White Paper on Tribal Land proposed changes to the TLA, including recommendations that women and men have equal rights to land allocation. A subsequent amendment to the Tribal Land Act substituted the words ‘citizen’ for ‘tribesman’. This was driven primarily by the need for people to be able to access land everywhere in Botswana in keeping with developments in infrastructure and the economy, but it also represented an important step towards gender equality. However, this advance was limited in that “tradition still gives unequal succession rights to boy and girl children” ³¹. Cases disputing rights of inheritance and succession in customary law which since have come before the courts highlight the immense obstacles women must overcome to be regarded as legitimate successors³². However, In 2012 the Botswana High Court overturned customary law which prevented women from inheriting the family home on the grounds that this contravened the gender equality provisions in the Constitution.

Despite the constraints, NGOs have played an important role in Botswana to advance women’s rights to land across a variety of household settings. They have also argued that married women should be able to access land in their own right – that “having a spouse should not be a hindrance for women to acquire land”³³. The Abolition of Marital Power Act of 2004 abolished married men’s power to stop their wives from acquiring land independently and in their own name. This was accompanied by an amendment to the Deeds Registry Act allowing women to register land in their name. While research confirms increasing access to land by women³⁴ such access remains strongly influenced by specific contexts, prevailing norms and the changing dynamics of social relations.

Urban tenure issues

Following the discovery of diamonds Botswana began a process of rapid urbanisation. The number of towns has grown from two at independence to 24³⁵. Rapid growth of urban settlements placed pressure on access to land and contributed to the rise of extra-legal land transactions. The Botswana Housing Corporation was established in 1971 and over the next two decades became the dominant urban property developer in Botswana³⁶. At the same time there was widespread recognition that the Land Boards were failing to regulate land transactions in urban areas. This led to the appointment of Kgabo Commission in 1991 to examine land problems in peri-urban villages. This Commission found that over 90 percent of ploughing fields had been subdivided and “converted to residential use without the authority of the Land Board”³⁷. The Commission recommended repossession of all land acquired unlawfully. This affected some 4000 people, who were subsequently reprieved by Presidential pardon, but who were required to pay a fine and regularise their land holding. Non-citizens were required to forfeit illegally acquired land³⁸.

By 2000, as the economy continued to grow, there was a sharp increase in the number of urban property developers seeking partnerships with individuals and institutions. State land was also made available for urban development, but persistent concerns about allocation procedures in the capital Gaborone gave rise to the Lesetedi Judicial Commission of Inquiry into State Land Allocations in 2004. 

The Commission found that portions of state and tribal land had been illegally allocated to non-citizens. This reflected mounting concerns in Botswana society about allocation of land to ‘outsiders’, thereby disadvantaging local people. However, this masked deeper concerns about the extent to which land allocation procedures could be manipulated for individual gain.  The continuing shortage of land in peri-urban areas prompted advocacy for a land quota system to regulate land allocation³⁹. This led to revision of the national settlement policy and the creation of a framework to prioritise investments in infrastructure.

The draft land policy of 2011 sought to restrict people to two free residential stands – one in the home village and a second elsewhere – usually in a peri-urban area in the country. The revised land policy of 2015 restricted every citizen to one residential plot in an area of their choice within the country. The revised policy allows people to access more land if they are prepared to pay for tribal land already allocated to be transferred to them⁴⁰. The policy commits the government to facilitate access to land to the private sector for housing delivery.

Currently the state enables citizens of Botswana to apply for, purchase or lease un-allocated urban land in different areas of Botswana. “Applicants who are allocated land through outright purchase will be granted a title deed as evidence of their right upon payment of the plot purchase price. Where land is allocated on a lease basis, a memorandum of lease agreement will be entered into between the Government and the allottee”⁴¹. Plot prices are nominal, ranging from P350 in the capital Gaborone, to P120 in smaller centres like Kasane.

^{Gaborone, photo by Michael Schmucker, CC BY-SA 2.0}

Community land rights issues

In 1961, prior to independence, the British administration established the Central Kalahari Game Reserve (CKGR) covering an area of 53,000 sq. km. In part, this reserve also sought to protect 5000 indigenous hunter-gatherer Basarwa people living within its borders⁴². However by 1979 the government of independent Botswana sought to resettle the Basarwa outside the reserve. It introduced the Remote Area Dweller Development Programme, the stated objectives of which were to provide services and promote salaried employment among hunter-gatherer communities. In 1985, a government commission recommended the wholesale removal of the Basarwa from the CKGR. It was more than ten years before government removals began in earnest. 1997 saw the start of the transfer of Basarwa people living in the reserve into camps. By 2002, the state set about confiscating Basarwa livestock and prevented access to water in the CKGR. The Basarwa were prohibited from hunting and gathering of wild foods. Water storage tanks were overturned, water points sealed, food deliveries halted, and remaining social services withdrawn⁴³.

Some Basarwa, with the support of local and international NGOs contested their eviction in court and in 2006 their eviction was overturned. However, only those Basarwa who had brought the lawsuit were legally entitled to return. Evidence suggests that the judgment did not guarantee their right of return as authorities are reported to have continued to obstruct those who tried to go back to the CKGR⁴⁴.

^{Basarwa man herding, photo by Rebecca Kahn, CC BY-SA 2.0}

Voluntary Guidelines on Responsible Tenure (VGGT)

Research to date has not identified resources relating to the uptake of the VGGT in Botswana. This section will be updated as information becomes available.

Conclusion

Botswana has a reputation as a stable democracy with a strong, if heavily mineral dependent economy. Despite this, the country confronts high levels of inequality. While all citizens have strong rights to land with Land Boards and systems in place to allocate and administer land, there is clear evidence of privileged access by a small elite to rangeland and water resources which has heavily skewed livestock ownership and landholding in rural areas.

In urban settings, there is mounting public pressure for transparent systems to enable equitable citizen access to well-located and serviced residential land.

There remain significant concerns about the land rights of indigenous Basarwa and the ways in which their rights in the CKGR and other ancestral lands have been diminished. The persistence of offshore company ownership of substantial landholdings dating back to the Tati concessions awarded in 1868, and the highly prejudicial profiteering from these land resources to the detriment of Botswana citizens, remains a curious contemporary anomaly.

Acknowledgments

This profile and the companion timeline have been peer reviewed by Professor Anne Griffiths – Emeritus Professor of Anthropology of Law in the Edinburgh Law School, University of Edinburgh. It has also benefited from commentary provided by Professor Pauline E. Peters, a social anthropologist and retired faculty member of the Department of Anthropology and the Kennedy School, Harvard University. The Land Portal gratefully acknowledges their time and valuable inputs.

Timeline: Milestones in land governance

1885 Bechuanaland declared a British Protectorate

1893 The Concessions Commission divides up the country tribal land, crown land and freehold portions

1930’s State investment in drilling of boreholes creates a livestock export market. This stimulates development of a cattle owning elite

1961 Establishment of the Central Kalahari Game Reserve

1966 Botswana gains independence from Britain

1966 The Tribal land Act leads to establishment of Land Boards for each of the nine native reserves and limits the power of dikgosi to allocate and manage land

1975 The Tribal Grazing Land Policy (TGLP) provides exclusive individual access to grazing land designated for commercial ranches. New land allocations for grazing displace Basarwa
from their lands

1980’s Mining led rapid economic growth

1983 Presidential Commission on Land Tenure

1985 Civil society organisations in Botswana campaign for women’s land rights

1993 Tribal Land Act amended to incorporate women’s land rights although this is limited by unequal succession rights

1995 Land tribunals introduced to mediate land disputes

2000 National land policy review

2006 Basarwa win a court case overturning their eviction from CKGR, but their return remains obstructed by officials

2008 Government commences mapping and regularisation of all tribal land allocations based on a numeric cadastre

2013 Government introduces the Land Administration Procedures Capacity and Systems (LAPCAS) to register all landholdings

2015 Revised national land policy

2018 Revised Tribal Land Act

Where to go next

There is a rich literature on Botswana. Faustin Kalabamu is a prolific researcher with research outputs spanning the last two decades. He has focused extensively on women’s land rights and access to housing as well as alternative dispute resolution options to resolve land disputes. Anne Griffiths has produced an important body of work with a particular focus on women’s land rights and customary law. Ditshwanelo – the Botswana Centre for Human Rights has an active Facebook page and has played an important role in advocating for the rights of the Basarwa. A 2011 case study on decentralised land governance in Botswana provides a useful, if dated overview.

For more in-depth information the companion Detailed Timeline: Botswana provides a chronology of key historical events and linked land related issues.

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