Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

MARTIN ADAMS, FAUSTIN KALABAMU, RICHARD WHITE

Land tenure policy and practice in Botswana -
Governance lessons for southern Africa

1. Introduction
1.1Population, resources and economy
Botswana is a semi-arid, sparsely populated country (ca. 1.7 million in 2001) of 581
000 square kilometres located in the interior of southern Africa. Britain declared a
protectorate over the country in 1885 and pursued a policy of indirect rule that
involved minimal interference in internal governance and customary law. It
achieved independence in 1966 as a unitary state and parliamentary democracy,
less affected by colonial rule than any other territory in the region, due no doubt
to its unrecognised economic potential. Colonial dispossession and settlement by
European farmers was not a major feature, although, where it occurred, local land
scarcity and related grievances remain largely unresolved.

For several hundred years, livestock production has played a dominant cultural and
economic role. Agricultural activities represented 40% of GDP in 1966, but only
account for 3% today. Since the early 1970s, the growth of mining, particularly for
diamonds, has stimulated infrastructure development and financed the expansion
of government services. Tourism, based on wildlife is now the second most
important primary source of foreign exchange.

In less than 40 years, Botswana has become a predominantly urban society. The
proportion of people living in urban areas increased from 4%, in the decade
preceding independence in 1966, to about 52% in 2002.i According to the census
definition, urban settlements have increased from two before independence to
about 24 in 1991. The capital, Gaborone, and its immediate hinterland are the
focus of rural-to-urban migration. Land scarcity and overcrowding in low-income
settlements have increased and so have the problems of urban land administration,
particularly on peri-urban customary land.

1.2 Land laws and tenure categories in Botswana

Land laws in Botswana, fall into three categories. Modern customary law draws its
inspiration from African culture. While its origins are indigenous, many
modifications have taken place during the past one hundred years. The customary
law of Botswana is described in two seminal works (Schapera 1938, 1943). Broadly
speaking, the common law of Anglophone southern Africa constitutes the modern
common law of Botswana. Since independence in 1966, there has been a
considerable amount of statutory law applicable to land; the most important laws
are: the Constitution of Botswana, Cap 1; the State Land Act, Cap 32, 01; the
Tribal Land Act, Cap. 32:02 and the Town and Country Planning Act, Cap. 32.09.

There are three categories of land tenure: tribal landii, state land (crown land
before independence) and freehold landiii. At independence, about 49% of the
national land area was tribal land, less than 4% was freehold and the balance state
land. Between independence in 1966 and 1972, a further 15,000 square kilometres
of state land were alienated and sold as freehold both to Europeans and Batswana
(White 1999). By 1980, the conversion of state land to tribal land and the purchase
and conversion of freehold land in congested areas, had caused tribal land to

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

increase to 69%, freehold land to fall to 5.7% and state land to fall to 25%. Today,
tribal land comprises 71% of the land area; freehold about 4.2% and state land the
remainder. Thus, the policy in Botswana has been to increase the area of tribal land
at the expense of both state and freehold ownership. Table 1 below illustrates the
changes.

Table 1: Land Tenure Categories in Botswana, 1966-1998

Year Tribal land State land Freehold land
Area % Area % Area %
1966 278,535 48.8 270,761 47.4 21,356 3.7
1979 403,730 69.4 145,040 24.9 32,960 5.7
1998 411,349 70.9 144,588 24.9 24,572 4.2
(White 1999)

State land, most importantly urban land, is administered according to the State
Land Act by central government and local government councils. In urban areas,
state land is allocated to citizens for residential purposes, as 99-year fixed-period
state grantsiv (FPSGs) which are registered in the Deeds Registry. For business or
industrial purposes grants are for 50 years. In low-income housing areas, land used
to be allocated to eligible households in terms of a certificate of rightsv (COR), but
this form of tenure on state land has been discontinued in favour of the FPSG.
State land is also occupied by the state as wildlife and forest reserves, research
stations, roads, military purposes, large dams, etc.

Decentralised land boards administer tribal land in terms of the Tribal Land Act.
Tribal land is either held by the land board itself or by eligible applicants as
customary grantsvi or common law leasesvii. Although a land board has the statutory
right to refuse to allocate land, an application by government will normally be
accommodated.

2. Milestones in Botswana’s land tenure policy

2.1 Stages in the reform of customary tenure
Land tenure reform refers to a planned change in the terms and conditions under
which people use, occupy and have access to land. The fundamental goals of
tenure reform are to bring about a more equitable distribution of land and land

Box 1: Land rights in Botswana

Depending on the land tenure category – tribal, state or freehold – land rights may include one or more
of the following:
- right of avail - to be allocated land by virtue of one’s membership of a tribe (now citizen);
- rights to occupy a home or homestead,
- rights to use land for crops, for grazing; to make permanent improvements; to be buried on
one’s ancestral land;
- rights to have access for gathering fuel, poles, wild fruit, thatching grass, etc.; to hunt and
exploit natural resources; and to use land for business or commercial purposes;
- rights of way for various purposes, including servitudes for infrastructure;
- rights to transact, give, mortgage, lease, rent and bequeath areas of exclusive use;
- rights to exclude others from the above-listed rights, and, linked to the above,
- rights to enforcement of legal and administrative provisions in order to protect the rights of the2
holder.
- rights to compensation for compulsory acquisition by the land board or state.
Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

resources, to secure people’s control over land rights (Box 1) and to devolve power
over land-rights management nearer to the ordinary landholder.

Botswana has long had customary rules and procedures governing land rights. An
important feature of customary land tenure system was the ‘right of avail’ that was
automatically shared by all people belonging to a particular tribe (Kalabamu 2000).
This right did not depend on the discretion of the chief. He was required to provide
residential, arable and grazing land for all his subjects. A tribesman was entitled to
land without giving anything for it, but he had a duty to protect and conserve it.
Although the concept of individual ownership was unknown, the rights to
residential land were exclusive and permanent. The holder could protect his rights
by civil action against any person, even the chief, except when land needed to be
acquired in the public interest. In this case the chief would allocate an equivalent
piece of land in compensation. Customary law permitted tribesmen to transfer
interests in residential land among themselves. Although the concept of land sales
was unknown, there was no rule forbidding payment for improvements. The free
transfer of unimproved land could be taken for granted. It was received free and
was given free. It was not viewed as a commercial asset (GRB 1992).

Allocation of arable land was to family heads. The tenure of allocations was
permanent, although allottees often requested new allocations when the original
fields lost fertility. Rights to arable land differed from rights to residential land in
that the holder enjoyed exclusive occupation only when the land was under
cultivation. After harvest it reverted to communal use, if only for grazing purposes.
A holder had the right to allow anyone in need to cultivate part of his allocation
and to collect payment or part of the harvest in return for the land clearing and
ploughing done by the holder. An area that was neither residential nor arable was
regarded as grazing land. All had the right to graze their animals there. There was
no fencing and cattle roamed and mingled freely. However, each owner was
entitled to a site for the purpose of drawing water, usually from a well. Once a well
was sunk, the holder acquired exclusive rights to it.

These customary rules are, of course, unexceptional. They will be recognised

across the vast savannah areas of Africa. In Botswana, they provide the basic
framework of customary land law. They have secured the land rights of the great
majority of the population for generations. Today, this framework has to
accommodate new rules to cope with changes brought about by the growth in the
human population, changes in land use practices and technology, economic growth
and urbanisation.

A consistent thread running through Botswana’s land-related policies and legislation

is the aspiration to provide the land, shelter and production needs of all citizens. A
related principle is that the land itself should not be bought and sold, only the
unextinguished improvements thereon. The principles are rooted in customary law,
but in an urbanising Botswana with a rapidly developing urban land market it is
increasingly difficult to sustain them.

2.1.1 Changes to land tenure introduced at independence

At independence, the State Land Act, 1966, turned crown land into state land and,
among other things, conferred on the President the power to provide for its
disposal. The Tribal Land Act, 1968 (as stated in the foreword to the Act) is ‘to

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

provide for the establishment of tribal land boards; to vest tribal land in such
boards; to define the powers and duties of such boards….’ It vested tribal land in
land boards in trust for the benefit and advantage of citizens and for the purpose
of promoting the economic and social development of all the peoples of Botswana.
Section 13 (1) of the Tribal Land Act, 1968, provides that:
‘All powers vested in the chief under customary law in relation to land including:
- the granting of rights to use any land;
- the cancellation of the grant of any right to use any land including a grant made
prior to the coming into operation of this Act;
- hearing of appeals from, confirming or setting aside any decision of any
subordinate land authority;
- the imposition of restriction on the use of tribal land
shall be vested in and performed by a land board acting in accordance with the
provision of this Act.’

The Tribal Land Act did not change customary land law other than by transferring
the authority over land from the chief to the land board, and by introducing
certificates as evidence of customary grants of individual rights for wells, borehole
drilling, arable lands and individual residential plots. The Act did, however, provide
for the granting of common law leases with the consent of the Minister, which was
a major innovation at the time. This early concession to an emerging land market
sanctioned the privatisation of the commons.

Box 2: Land Board Membership

Elections in the Kgotla (Village Assembly) started in 1984. Prior to that, two members were elected by
the District Council from amongst its members, the Chief was an ex officio-member to represent the
tribe, the District Agricultural officer was an ex-officio member to represent agricultural interests and
the remaining members were appointed by the Minister of Local Government Lands and Housing, on
the advice of the District Commissioner, to represent tribesmen and other local interests.

The composition now is 12 members for the main boards and 10 for the subordinate boards. Two
members on each main and subordinate board are representatives of the Ministries of Agriculture
and Commerce and Industry. Five members on the main boards and four on the subordinate boards
are appointed by the Minister to hold office for three years, but subject to reappointment. The
remaining five members on the main boards and four on the subordinate boards are appointed by the
Minister for a four year renewable term after being selected by a Land Board Selection Committee
from lists of candidates compiled in the area of jurisdiction of each subordinate board and selected
or elected at the Kgotla. Chiefs, sub-chiefs and their nominees, those holding elected political office
or holding public office are disqualified from standing for selection or election to land boards.

In the region, land boards are unique to Botswana, often imitated but less often
understood. Nine land boards started operating in 1970 and three more were
created in 1976. Thus, there are now twelve land boards within the ten
administrative districts. The land boards were constituted as corporate bodies with
the capacity to sue and be sued and the power to do anything that would facilitate
the proper discharge of their functions.

The land boards got off to a slow start. It took many years, and substantial efforts
to train and guide the members, before they were familiar with their duties. One
problem was that many of the people most knowledgeable on local land matters
were illiterate; conversely, many of the better-educated people knew little about
the land, being better acquainted with urban issues. Numerous adjustments have
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Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

been made to the composition of the land boards before the current composition
was arrived at (Box 2). It has proved extremely difficult to mould the land boards
simultaneously to fit the diverse objectives of modernisation, democratisation,
decentralisation and the pursuit of sometimes conflicting policies (e.g. the
privatisation of the commons at the same time as upholding the egalitarian
principles of customary tenure).

As the volume and complexity of land board business increased, demands on the
members have become heavier. Minimum educational standards are required of
candidates. A minimum age limit of 26 years and an upper limit of 65 years have
been imposed. Newly elected land board members receive a period of training in
their duties. Land board membership makes heavy demands on members’ time.
There are not only the regular meetings, but also informal consultations and site
visits, which can mean spending several nights away. It was found that active and
capable people who might be eligible for land board membership were unwilling to
serve unless they were compensated at a rate equivalent to the opportunity cost of
their time. One of the most frequent complaints against the land boards is that
they allocate land inequitably, that they favour those with influence and many
cattle, and ignore the land claims of those who are politically inarticulate and have
few animals. There is some evidence, however, that these biases are even greater
in some of the central government offices which deal with land, and that the land
boards and district councils, both locally representative bodies, have a clearer
perception of the needs of the poor than do most civil servants.

Most of Botswana’s districts are too large for a single land board to handle and 37
subordinate land boards have therefore been created to carry out many of the
same functions as main land boards, but at the local level (Box 3). In theory, this

Box 3: Duties of Main Land Boards and Subordinate Land Boards

The Main Land Board allocates land under customary and common law for residential, arable
and other purposes. It also cancels grants made on any land including grants made by chiefs
before the establishment of the land boards and hears appeals from Subordinate Land Boards. It
imposes and enforces restrictions on the use of land, implements land-related government
programmes like TGLP and the 1991 New Agricultural Policy fencing component. It is also
charged with the sustainable management of tribal land under its jurisdiction. Applications by
non-citizens are processed by the Main Land Board but the decision on them lies with the Minister
of Land and Housing.

Subordinate Land Boards allocate land for customary uses, impose restrictions on use and
recommend cancellation of customary land rights to the Main Land Board. They receive,
investigate and make recommendations to the Main Land Board in respect of common law and
borehole applications. They also settle land disputes. Subordinate Land Boards can’t allocate any
grazing land, any commercial or industrial land and cannot authorize a change of land use.
devolution of powers preserves one of the most important characteristics of the
land allocating body - its local knowledge and understanding of the people’s need
for land and their traditional rights. In practice, in sparsely settled parts of the
Kalahari, the subordinate land boards can still be some 250 km away from local
communities.

Permission of the main land board is required for sinking a borehole or digging a
well. In order to avoid crowding of boreholes, and therefore of settlements and

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

cattle posts, a general rule of 8 kilometres between new boreholes or watering

points is applied throughout the country. Borehole siting is a complex task, which
has to reconcile the wishes of the applicant to drill in a certain place, the technical
feasibility of finding potable water at a reasonable depth, the presence of
sufficient unutilised land to allow the 8 km rule to be applied, and the absence of
counter claims to that land. Some of the same complexities arise where leases for
commercial ranches are applied for, and have to be inspected and demarcated.

Leases for ranches were first allocated on a significant scale under the Tribal
Grazing Land Policy (GRB 1975).viii The aims of the policy were to stop over-grazing
and degradation of the veld; to promote greater equality of incomes in the rural
areas; and to allow growth and commercialisation of the livestock industry on a
sustained basis.ix Exclusive rights to specific areas of grazing land were given to
individuals and groups for commercial ranches with boreholes and fencing. Leases
were granted and rents paid to the land boards. Tenure conditions in unfenced
communal grazing areas remained unchanged. This controversial privatisation
policy has been expanded under the National Policy on Agricultural Development
(GRB 1991a). Because rights to hunt and gather are not recognised under customary
or statutory law, the indigenous San people continue to be displaced by fenced
ranches and relocated in settlements. The Tribal Land Act entrenched a fairly
uniform system of Tswana land tenure. It did not accommodate other forms
deviating from the Tswana patterns of land holding and use. The San are not the
only minority marginalized in this way.

The integrity of the land administration system on tribal land has also been tested
in the crowded peri-urban areas. The increasing demand for land and the rapid
urbanisation that is taking place require a high level of technical and
administrative competence on the part of the land boards. The failure to provide
for the recording of all existing customary land rights has continued to severely
undermine the land allocation process. Many of the problems now being
experienced in the peri-urban areas have, at their root, the lack of information on
the extent and nature of prior allocations (Ng’ong’ola 1999). In the urban areas,
the land boards have difficulty in identifying the genuinely needy from among the
many applicants and of finding land to allocate to them. Time and resources are
wasted and illegal activities go unchecked.

In the view of the Presidential Commission on Land Tenure (GRB 1983) the
financial, technical, staff, transport and other resources required to permit this
institution to carry out its responsibilities were badly underestimated. This remains
as true today as it was twenty years ago. The Second Presidential Commission on
Local Government Structure in Botswana (GRB 2001) also recorded serious public
disquiet about the operations of the land boards.

2.1.2 The first comprehensive review of land tenure policy in 1983

The Presidential Commission on Land Tenure (GRB 1983) conducted the first major
review of Botswana’s land policy 15 years after independence and found no reason
for sweeping changes. It described the land tenure policy that had been pursued by
government ‘as one of careful change, responding to particular needs with specific
tenure innovations’ (p. 3). The recommendations that were accepted by
government included the following:

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Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

(a) Commercial and industrial leases on tribal land should be modified to allow for
duration of 50 years; automatic right of inheritance should be granted; land
board consent should no longer be required for a sale of a common law lease to
a citizen; the consent of the land board to transfer or sale should not be
unreasonably withheld.
(b) Common law leases for residential plots, for the purpose of mortgaging
residential buildings, should remain as 99 years; the lessee should be allowed to
apply for reversion to customary allocation at any time, subject to it not being
mortgaged.
(c) FPSGs (Fixed-Period State Grants) and CORs (Certificate of Rights) were deemed
to be the most suitable form of land tenure on state land in urban areas. The
Commission called for changes to allow lending against a COR offered as
security. Amendments to the Deeds Registry Act were proposed to stop land
fronting.x

2.1.3 The 1992 White Paper and Tribal Land (Amendment) Act, 1993
The next important milestone was the Review of the Tribal Land Act, Land Policies
and Related Issues (Mathuba 1989). A Presidential Commission (GRB 1991b) and
White Paper on the Land Problems in Mogoditshane and other Peri-Urban Villages
(GRB 1992) followed. The Commission was appointed to inquire into the illegal
transaction occupation and use of tribal land adjoining Gaborone and Francistown
and to make recommendations to resolve them.xi The government’s response was
contained in the White Paper published in 1992, which went beyond the resolution
of land problems in peri-urban areas. It examined the status of the customary land
tenure system, provided a synopsis of the customary law prior to the enactment of
the Tribal Land Act, 1968, and explained the pending changes to the law.

The government white paper addressed the contentious issue of compensation for
compulsory acquisition of land because the failure of the land boards to pay
adequate compensation to rights holders of arable land was a root cause of some of
the land management problems in peri-urban areas. The government paper
recalled and reaffirmed the views of the first President of the Republic of
Botswana, Sir Seretse Khama, that there was no longer any justification for
compensation for the acquisition of tribal land for public purposes to be lower than
compensation for other types of land, that such differentiation could not be
reconciled with the terms of the Constitution and that the law would be altered so
that tribal land would be covered by the terms of the Acquisition of Property Act
so as to enable landowners to receive compensation commensurate with the value
of the land as dictated by market forces.

The amended law made possible the further extension of the market in tribal land.
A crucial amendment, vehemently opposed by some chiefs and members of
Parliament (Mathuba 2001), replaced ‘tribesman’ with ‘citizen’ so as to allow land
allocation to women as well as men and do away with the requirement for
ministerial consent for non-tribesmen to hold land within another tribal
jurisdiction. The amendment also did away with the requirement for the Minister’s
consent for common-law leases to be granted to citizens. It also provided for the
transfer of customary and common-law rights without the consent of the land
board, provided the land had been developed for the purpose for which it was
originally granted.

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

The extension of the eligibility criteria and the migration to eastern Botswana has
resulted in a major increase in applications to land boards for residential plots.
This has come about as a result of genuine need, pre-emptive reservations to
forestall land scarcity (e.g. by parents for their children), as well as the wish to
profit from increasing land values. The scramble for allocations has had many
adverse consequences. It ties up the financial and human resources of the land
boards while large numbers of allocated plots remain undeveloped and unused. As a
consequence, new residential land extends the perimeters of villages into arable
and grazing land. The costs of servicing plots with infrastructure also increase.

2.1.4 Developments in the administration of urban state land

The State Land Allocation Policy aims to provide for the right of avail in urban
areas. The policy currently in force states that all citizens, regardless of where
they live, will be eligible for two residential, commercial and industrial plots in the
urban areas of Botswana, provided that a first plot has been developed (MLGL
1990). Land servicing (i.e. provision of roads, drains, water and power supplies) is a
precondition for land allocation on urban state land for residential, commercial and
industrial purposes. Plots are not allocated free but at a price determined by the
income category for which the plots are intended. However, prices fall below
market value, hence the long waiting lists and the associated problems of land
fronting.

The Self Help Housing Agency (SHHA) allocates plots for low-income earners. The
Ministry of Lands and Housing is responsible for overseeing the administration of
urban state land and for co-ordinating the development and allocation of non-SHHA
serviced land. The Ministry is also responsible for overseeing the survey of all
layouts and plots for which titles are allocated and registered by the Deeds
Registry. The private sector, which has so far played only a modest role, is involved
in land servicing in high-income residential estates on freehold land and on a
limited scale through government contracts on blocks of state land. At the other
end of the income scale, NGOs have been active in low-income shelter provision.

The Accelerated Land Servicing Programme (ALSP), instituted by the government in

1992, aimed to meet the demand for urban land and respond to the ‘right of avail’
of citizens. Upon an application being lodged with the Ministry or SHHA office, the
applicant’s details were entered into a computer. Priority was given to those with
no urban plot. When plots became available, a committee approved the
allocations, which were to not be transferred unless they had been developed for
the purpose for which they were allocated and a 10-year period had elapsed since
allocation. In a case where a plot had to change hands before the prescribed date,
it had to be developed first and the transferee had to pay to government the
difference between the sale price of the plot and the initial price paid by the
allottee.

A review of the ALSP found that, of the middle and upper income plots in
Gaborone, 13% had to be repossessed as compared with 55% of the SHHA plots (MLH
2001). A similar pattern emerged in the other centres. The number of residential
plots that remained undeveloped and unpaid for between 1992 and 2001 was
substantial. Allottees were not able to develop the land, even though it was
offered at subsidised prices. As a result, the infrastructure provided deteriorated.

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Some 22 000 plots were delivered under the programme between 1992 and 2002,
but no new major land-servicing project is planned.

The National Policy on Housing (GRB 2000) portends a fundamental change to land
policy in urban areas. It states that government’s role in the provision of land for
housing has had to change from that of financier and direct producer of plots, to
that of facilitator. The allocation of subsidised plots to urban households, whatever
their level of income, has to come to an end. The government paper states that in
future scarce budgetary resources will be channelled to low income housing as an
instrument of economic empowerment and poverty alleviation.

3. Botswana’s National Land Policy review 2002

Some ten years after the last government paper on land tenure policy and the
amendments to the Tribal Land Act, consultants were appointed by government to
conduct a comprehensive review of land policy and prepare the groundwork for a
government paper on the subject. Stakeholders from all over the country
energetically debated the conclusions of two draft reports by the consultants (NRS
2002a: 2002b) in the last quarter of 2002. The review covered both land
administration and land management.xii The review concluded that Botswana’s
overall land policy and institutional framework are fundamentally sound and that,
despite the profound changes witnessed by Botswana in the last two decades, the
1983 strategy of careful change, responding to particular needs with specific
tenure innovations remains valid. Nonetheless, some important adjustments to the
policy are called for.

3.1 The right of avail

The customary rules governing applications need to be updated to overcome the
related market failures. The Land Policy Review (LPR) recommended that: the
entitlement of citizens to apply for any number of residential plots should be
limited; application fees should be restored to 1968 values to act as a demand
regulator and the regulations relating to the repossession of undeveloped land
should be amended. The LPR proposed that citizens should be limited to a single
lifetime grant of tribal land for residential purposes. If the plot were serviced, the
recipient should pay the costs involved. For additional plots on tribal land, people
should rely on the land market. With regard to the allocation of urban state land, it
was recognised that the waiting list system had outlived its usefulness and that
middle and upper income groups should obtain land through the market. However,
government should continue to acquire, service and distribute land to meet the
housing needs of the poor.

3.2 Compensation for land acquisition

The LPR recommended the establishment of a unified and fair system of land
acquisition and compensation applicable to all land and all people with property
interests in land. The scope of compensation offered and the rights of those to be
compensated under the Tribal Land Act should be extended to achieve parity with
the provisions of the Acquisition of Property Act and to comply with the
requirements of the Constitution. This proposal was anticipated ten years ago (GRB
1992) but not followed up. The type of compensation offered should be flexible and
should correspond to the needs of those to be compensated.

3.3 Proposals relating to the content of rights in rural areas on tribal land

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

In rural areas on tribal land the LPR proposed a number of tenure-related measures
that would improve land management and development prospects and protect the
land rights of the poor. Proposals were made that would increase the flexibility of
the land use categories provided for under the Tribal Land Act to empower holders
of customary grants and common law leases to use the land for any purpose
compliant with planning regulations or local bylaws and to sublet residential and
arable land and enter into share cropping and share farming agreements in a
manner which would protect the interests of the parties involved.

With regard to grazing leases, the LPR recommended that, in order to address the
problem of dual grazing rights,xiii the Tribal Land Act should be amended to require
any person who wished to move livestock from a fenced farm to a communal area
first to obtain the permission of the body responsible for that communal area’s
management. It also proposed that leases for all ranches should require the lessee
to relinquish all rights to use the communal grazing land belonging to the lessor
(i.e. the land board).
Many grazing leases are not managed commercially but as weekend cattle posts by
town dwellers. In order to promote commercial management of leasehold ranches
on tribal and state land, the LPR recommended that: rents should be levied at a
commercial level; all ranches on tribal land should be allocated through a
transparent tender procedure; where a rancher declined, or is unable, to pay a
commercial rent for a leasehold farm, the holder should be required to surrender
the lease to the land board for the board to dispose of as it sees fit; lessees of
TGLP ranches should be permitted to manage their farms profitably, to use their
land in a commercial manner and free to select the most appropriate manner of
use for it.

The LPR endorsed the recommendation made by the Revised Rural Development
Policy (GRB 2002) that local community-based institutions should be involved in the
allocation and management of land and natural resources. Community based
property rights should be recognised and more adequately provided for in the
Tribal Land Act.

The LPR proposed a number of steps to address tenure related problems identified
in the leasing of land to the tourism industry. For example, all leases of public land
should be public documents open to scrutiny by any person. Land boards should
educate the public in their rights and responsibilities. Both land boards and
communities should change their attitude towards concessionaires and joint
venture partners and work with them for everyone’s benefit. Land boards should
invest more resources of manpower, money and time in monitoring the activities of
communities, concessionaires and joint venture partners and support them in
meeting their obligations in terms of their lease and joint venture agreements.

3.4 Facilitating the operation of the land market

The LPR concluded that the continuing rapid growth in transactions required more
efficient operation of the land market. Recommendations were made for
improvements in efficiency that could be obtained by (i) reducing the transactions
costs (e.g. by simplifying procedures and reducing delays by improving the
efficiency of the Deeds Registry and the land boards); (ii) ensuring that buyers and
sellers have better access to information (e.g. data in the Deeds Registry and
details of vacant and available plots on tribal land); and (iii) by reducing risks and

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Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

uncertainties (e.g. by making clear what constitutes a legal transaction and what
does not). The extension of the benefits of the land market to more citizens
involves improving access to mortgage finance by first-time borrowers and making
it easier to rent property.

3.5 Problems experienced by groups of citizens in securing land rights

The LPR, while advocating government’s recognition of the importance of the land
market in the land allocation process, conceded that certain groups of citizens
were sidelined in the market allocation process, because they did not have the
financial muscle or because they were disadvantaged in some other way by reason
of the law as it now stands. Under this heading were included the poor, women,
marginalised minority groups, and those affected by HIV/AIDS. It was necessary for
government to intervene in the land market on their behalf.

The LPR observed that land and shelter were aspects of poverty that have been
neglected and recommended that land and housing for the poor should become a
focus of national policies for the alleviation of poverty. To further strengthen
women’s land rights, the LPR recommended the abolition of the ‘marital power’ in
laws, the review of marital property law, the reform of inheritance laws, and the
necessary actions to encourage the reform of the lending practices of banks and
increasing the representation of women in land authorities.

With regard to minorities such as the San and other groups, it was recommended
that in those localities where they formed a majority, local community structures
could be established to regulate the use of the land and manage natural resources,
including water. New water development in settlements could be put under their
control, as was proposed in the early San settlements in the 1970s, so that they
could operate a well and control access by large herds (Wily 1981). The LPR called
for a high-level policy decision to afford the San protection from eviction as a
result of the allocation of common law leases under the fencing component of the
National Policy on Agricultural Development (GRB 1991).

The LPR recognised the need for a more study of the impact of HIV/AIDS on land
rights in Botswana. It proposed actions to protect the property rights of women and
orphans. This proposal was based on emerging evidence from Botswana of problems
in this regard and the experiences of other countries in the region that are affected
by the pandemic (SARPN 2002).

4. Drawing governance lessons from Botswana

Systems of land administration cannot be exported wholesale to other countries,
but experiences with different types of tenure, land institutions and the
harmonisation of statutory and customary law can be usefully drawn upon.
Botswana’s land institutions are often held up as a model of democratic
development. As periodic land policy reviews have revealed, there have been both
successes and failures, but after investigation and discussion problems have
generally been acknowledged and rectified.xiv In no other country in the region has
land been so judiciously administered as an essential component of good
governance. Some would argue that Botswana has little to offer in the way of
lessons to the region because it is unrepresentative. Its population is modest in size
and ethnically relatively homogeneous. By comparison with neighbouring countries,
it is relatively wealthy and has no impairing legacy of colonial settlement. These

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

points have some validity. But it should be noted that Botswana set out to
democratise its land administration shortly after its independence in 1968, when it
was still one of the poorest countries in Africa. The costs of Botswana’s land
administration are modest. In current 2002/03 prices the combined recurrent
expenditure of all the institutions in the land sector grew from 51 million Pula in
1989/90 to 165 million Pula in 2002/03.xv This represents 0.8% to 1.2% of total
annual government expenditure over the period.

4.1 The nature of the policy making process

Because of its sensitivity and complexity, land tenure reform is a time-consuming
process. The necessary institutional development is likely to take decades (Adams
et al 1999). Progress is dependent on appropriate constitutional and legal
frameworks and requires thorough public consultation and careful preparation. For
the last quarter of a century in Botswana, iterative policymaking in the different
sectors, including land, has followed a process extending up to two years: (i) a
commission of inquiry (or an expert review); calls for written submissions; public
meetings involving a wide range of stakeholders; (ii) the preparation of a draft
report, oral presentations and discussions at a national workshop covered by the
media; (iii) a draft paper which is debated in Parliament; (iv) the publication of a
government white paper setting out the policy change adopted; the
recommendations which have been accepted, amended and deferred (or rejected)
with a justification for government having done so; (v) finally, where relevant, the
drafting of laws or amending of existing laws.

This process of policy development and change is in stark contrast to that played
out elsewhere in southern Africa over the last decade. It is difficult to detect a
linear relationship (or any kind of systematic relationship) between the analysis of
the problem or opportunity and the assessment of the evidence, the formulation of
recommendations and the announcement of the policy change. In Zimbabwe,
Zambia, Namibia, Lesotho and Swaziland land policymaking is seen as a Cabinet
task. Even then, the consistency associated with collective decision-making is
absent, perhaps because policy is the prerogative of the President and/ or the
Prime Minister and reflects political short-term expediency.

4.2 The role of traditional authorities

Land tenure reform in Botswana has been both flexible and gradualist with regard
to the role of traditional authorities. Because widespread departures from existing
systems are rarely immediately feasible, successive governments have moved in a
measured way to reduce the powers of undemocratic traditional leaders (see Box
2). In contrast, successive ANC governments in South Africa have vacillated over the
role of the chiefs in the communal areas. The Communal Land Rights Bill, intended
to secure the tenure of people living under traditional leaders, is now not expected
to reach Parliament in 2003, after five years in the making. Zimbabwe, Namibia
and Zambia have a similar record of ‘blowing hot and cold’ over the role of chiefs.
Lesotho government is in the process of drafting legislation to abolish customary
land tenure on the advice of the Land Policy Review Commission (GKL 1999),
despite the fact that the chiefs hold effective sway over land allocation in much of
the country.

4.3 The devolution of powers over land rights management and decision
making

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Journal für Entwicklungspolitik (Austrian Journal of Development Studies), XIX, 1, 2003, 55-74.

Botswana’s experience with the land boards has been of interest to countries in the
region, but as the recent LPR has shown, more work has still to be done to bring
about the effective, democratic and participatory management of communal land
rights and to devolve responsibility for land rights management to the rights
holders. Several countries claim to aspire to imitate Botswana’s land boards. Land
boards appeared in a draft of the so-called Land Rights Bill in 1998 for the
communal areas of South Africa. The land board (at magisterial district level) was
intended to be an integral part of a system of land rights management, a nested
system that simulated customary systems. In the latest version of the legislation,
the Communal Land Rights Bill (GRSA 2002), the land board (on which chiefs have
token representation) is to be located only at provincial level, principally with an
advisory role and bearing little if any similarity to the institution in Botswana.

4.4 Customary land relations and the status of women and the poor
Reform of customary land relations must pay special attention to the legal status and
economic activities of women and the poor, who are often disproportionately
dependent on the commons. Despite the complexities, reforms to sustain their access
to the commons are essential (Adams et al 2000). The National Land Policy Review
once again drew the Botswana government’s attention to the concerns raised by
White (1993) on the privatisation of the commons by sectional interests in the cattle
industry and the likely negative impact on the production of a range of livestock and
veld products and the livelihoods of the poor. It remains to be seen whether the
advice will be heeded. Although legal reforms still need to be undertaken, the record
of Botswana in securing women’s land rights is more creditable. Although the matter
has yet to be confirmed, there is evidence that the negative impact of the HIV/AIDS
pandemic on women’s land and property rights is less severe in Botswana than
elsewhere in southern Africa.

Abstracts
Like other countries in the region, Botswana inherited a dual system of statutory and
customary tenure at independence. Despite the contrasting characteristics of these
two systems, it has developed a robust land administration, which has greatly
contributed to good governance and economic progress. Its land tenure policy has
been described as one of careful change, responding to particular needs with specific
tenure innovations. Botswana continues to adapt its land administration, based on
customary rights and values, to a rapidly urbanising economy and expanding land
market. Its approach is of interest because it is finding solutions to problems that
continue to elude its neighbours.

Mit der Unabhängigkeit erbte Botswana, wie auch die anderen Länder der Region,
ein duales Rechtssystem bestehend aus formalem Recht und Gewohnheitsrecht.
Trotz der gegensätzlichen Charakteristika dieser beiden Systeme entwickelte
Botswana ein stabiles Landbesitzsystem, das wesentlich zu „good governance“ und
einer positiven wirtschaftlichen Entwicklung beitrug. Botswanas Landbesitzsystem
wurde als System beschrieben, das vorsichtige Änderungen ermöglicht und durch
Innovationen besondere Bedürfnisse der Bevölkerung berücksichtigt. Botswana
adaptiert sein Landhaltungssystem, das auf dem Gewohnheitsrecht und
„traditionellen“ Werten basiert, um der sich immer rascher urbanisierenden
Wirtschaft und den sich ausbreitenden Landmärkten gerecht zu werden. Der
gewählte Ansatz ist nicht zuletzt deshalb von besonderem Interesse, weil er
Lösungen zu Problemen bietet, die auch Botswanas Nachbarländer betreffen.

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Martin Adams, Faustin Kalabamu, Richard White, Land Tenure Policy and Practice in Botswana

References
Adams, Martin 2000. Breaking Ground: Development Aid for Land Reform. London:
Overseas Development Institute.
Adams, M., B. Cousins and S. Manona. 2000. ‘Land Tenure and Economic
Development in Rural South Africa: Constraints and Opportunities’. In: B.
Cousins (ed.) At the Crossroads: Land and Agrarian Reform in South Africa
Into the 21st Century. Cape Town: Programme for Land and Agrarian Studies,
University of the Western Cape and National Land Committee.
Adams, M., S. Sibanda and S. Turner. 1999. ‘Land tenure reform and rural
livelihoods in Southern Africa’, Natural Resource Perspectives, Number 39,
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GRB 2002. Revised National Policy for Rural Development. Gaborone: Government
of the Republic of Botswana, Government Printer.
GRSA 2002. Communal Land Rights Bill. Pretoria: Government of the Republic of
South Africa. www.gov.za/bills/index.html
Kalabamu, Faustin 2000. ‘Land tenure and management reforms in East and
Southern Africa – the case of Botswana’, Land Use Policy, 17 (2000) p. 305-
319.
Mathuba, Botshelo 1989. Report on the Review of the Tribal Land Act, Land
Policies and Related Issues. Gaborone: Ministry of Local Government and
Lands, Government Printer.
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Land Reform and Poverty Alleviation in the Region. Pretoria: Southern
African Regional Poverty Network, Human Resources Research Council.
www.sarpn.org.za

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Ng’ong’ola, C. 1999. ‘National Land Boards: The Experience of Botswana’. National

Stakeholder Workshop on National Land Policy. Harare.
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Natural Resource Services.
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Martin Adams, Mokoro Ltd

87 London Road, Oxford OX3 9BE, United Kingdom
e-mail: [email protected]

Faustin Kalabamu, Department of Architecture and Planning, University of

Botswana
Private Bag 0022, Gaborone, Botswana
e-mail: [email protected]

Richard H. White, Natural Resource Services (Pty) Ltd

P. O. Box 1425, Gaborone, Botswana
e-mail: [email protected]

15
i
For census purposes, an urban area is defined as a settlement with a minimum population of 5000 inhabitants and
whose at least 75% of its labour force are employed in non-agricultural activities.
ii
Tribal land is a misnomer, as it no longer held by tribes but by statutory land boards. More appropriately it should be
called customary land as it is administered in terms of customary law.
iii
Strictly speaking freehold is not a term used in Roman Dutch law. The correct term is land in private ownership.
iv
This form of tenure is granted on urban state land. An FPSG is long-term building leasehold except that the usual
ground rent is converted to a premium payable on the grant of the interest. Transfers, sales or assignments can take
place once the initial development covenant is satisfied.
v
As the name suggests, it was a certificate spelling out the rights and obligations of the holder. These included
transferability with the consent of the Town Council, inheritability and use in return for an obligation to pay for the
services provided by the Town Council.
vi
Grantees receive a certificate of customary land rights. While the certificate was introduced to make people feel more
secure, most people are not worried about their security of tenure and many allottees fail to collect their certificates
from the offices of the land board.
vii
Common law leases are renewable, registrable under the Deeds Registry Act and are mortgageable.
viii
Leasehold tenure was first introduced under the Tribal Land Act to cover small businesses and residential land
granted to non-citizens.
ix
The policy had a negative impact on all counts and led to the emergence of iniquitous ‘dual grazing rights’ in which
ranch owners keep their cattle on the communal lands, only to withdraw them to their farms when grazing is exhausted.
x
Fronting exists because of the differential prices at which land is made available to different classes and groups of
individuals and because of a ban on selling undeveloped land. For example, it takes place when a person who is
allocated a plot at a subsidised price arranges to sell it (at a higher price) to someone that might not be eligible to apply
for the land direct.
xi
Illegal transactions included the unauthorised subdivision and/ or sale of arable land for residential and other purposes
and the transaction of land allocated for residential purposes before it had been developed for that purpose.
xii
Land administration refers to the process of allocating land and determining, recording and disseminating information
about the tenure, value and use of land when implementing land management policies. Land management is concerned
with the management of land as a resource, both from an environmental and an economic perspective.
xiii
See endnote 10.
xiv
Notable exceptions are issues relating to the land rights of the San and other minorities and the related problem of
privatisation of the commons for ranching.
xv
This includes, Land boards, the Land Tribunal, the Department of Surveys and Mapping, the Department of Lands,
the Department of Town and Regional Planning and the Attorney General’s Chambers Lands Division & Deeds
Registry.