Last week, I dealt with the access to and ownership of land in the context of Botswana’s constitution and the Tribal Land Act (TLA). My main argument was and is that Batswana’s rights to own and access land are enshrined in the constitution. This does not need a lawyer to interpret. It is straightforward. However, in this piece and some few to follow, I closely examine certain sections of our constitution which relate to the ownership of property and land. I am not a lawyer. My interpretation is based on my background as a researcher focusing on land issues in Botswana. I want Batswana to critically look at these issues. Today, I examine section 8 of the constitution which states that “(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say— (a) the taking of possession or acquisition is necessary or expedient— (i) in the interests of defence, public safety, public order, public morality, public health, town and country planning or land settlement; (ii) in order to secure the development or utilisation of that, or other, property for a purpose beneficial to the community; or (iii) in order to secure the development or utilization of the mineral resources of Botswana”. It further notes that prompt compensation follows when property or land is acquired for the above purposes. Fine and well said. Yet, my main question is: Do the public fully understand the above conditions and their implications? To the best of my knowledge, Batswana still contest the compulsory acquisition of their land despite being done in the ‘pretext’ of ‘public interest’. This tells me that this concept is highly contested and equally misunderstood.
I relate section 8 of the constitution with the repossession of land from Batswana, especially the weak, by the government for various reasons-some of them flimsy. In 2010, the government announced that it would repossess some masimo (arable fields) on the basis that the land has been laying ‘idle’ or ‘unutilised’. Residential plots are also repossessed by the government on the same pretext. In both cases, the land is reallocated to those who are deemed capable to develop it to the satisfaction of the dispossessor (the government). In common cases, the land is repossessed because the government wants to build public amenities, some housing units, village expansions and the like. Interestingly, the repossession is backed by the TLA section 32 (1), which gives the president the power to authorise a land board to repossess any land under its jurisdiction for the purposes mentioned in section 8 of the constitution. African governments have joined hands with multinational corporations to dispossess people their land-often in the pretext of ‘national projects’. Yet, in many cases, the said projects are for personal aggrandizement.
In Botswana, as elsewhere, repossessing land in the ‘public interest’ remains contested at the local level, especially by those who lose their land. I want to relate to a situation in the North East District, a land-starved district, where repossession of land left many without masimo. The cases of Tati Siding and Masunga come to my attention. In Masunga, massive hectares of masimo were acquired by the Tati Land Board for village expansion. This ‘expansion’ entails the demarcation of new residential plots. In Tati Siding, masimo too, were repossessed for the same reasons. Many villagers alleged that the land was sought for the construction of the Botswana Housing Corporation (BHC) houses. They were a lot of rumours about this. This gave me the impression that the villagers did not exactly know why the repossession or were simply against the repossession of their land. The issue of public interest comes into question. The frustration of many, especially those whose land was dispossessed, is that the land board is not obliged under the TLA section 33 (2) to allocate them alternative land. This makes no sense because the rural people, peasants, rely primarily on agriculture. How are they expected to benefit from the many agrarian schemes that the government offers, if the same government dispossesses them their land? The rural people are confused by how repossessing land without any alternative becomes “beneficial to the community”. Some are also puzzled by section 8 of the constitution when it says “the taking of possession or acquisition is necessary or expedient”.
In some cases, the government acquires arable land; and leaves it to lie idle, without any developments, for many years. Is this “necessary or expedient”? It is critical that the affected communities fully understand how they will benefit from the projects dubbed public or national. The communities want projects that would benefit them directly. The government should make an effort to make them appreciate what is ‘national’ and ‘public’. It fails, in many occasions, to do so. To the communities, the government fails them if it does not provide alternative land. This, to some, undermines their constitutional right to own property- land in this case. It appears to me as if the ownership of masimo, which are easily repossessed, is treated not as a right but a privilege. A food-for-thought! The land boards, after dispossessing masimo, tell people to go and look for ‘empty’ or ‘vacant’ pieces of land for themselves, and come back to them for procedure. This is cumbersome and insensitive. For example, in Tati Siding, those whose masimo were repossessed had to travel to Ditladi and Patayamatebele, almost 100 km, to beg for land from the dikgosi there. Since the compensations are meager; yes they are- many abandoned arable farming. The compensations were not enough to prepare any virgin land. The sincerity of section 8 of the constitution and the TLA sections 32 (1) and 33 (2) when land is being repossessed remains questionable. Repossessing land will invariably be questioned by the communities and individuals. The government should sincerely debate and consult with the affected.